When employees are being transferred to another organisation under TUPE, there are certain obligations that the outgoing employer (the company the employees are leaving) needs to comply with. These include:
- Identify which employees will transfer
- As early as possible identify which employees will transfer to the incoming employer. If the whole business is being sold or merged, then this will be all the employees. If the TUPE is occurring due to a change of service provision of a particular contract, then this is likely to include only the employees that work on this contract for at least 50% of their time
- Request information from the incoming employer about any measures
- The measures refer to any changes that the incoming employee would like to make to the employment arrangements. This can include any potential redundancies, any changes to contractual terms such as pay dates, working patterns or location.
- As the employees’ terms and conditions are protected under TUPE, only changes that derive from one of the following reasons can be made:
- Economic – related to how the company has been performing
- Technical – related to the processes or equipment used by the company
- Organisational – related to the structure of the business
- The protection of the employees terms and conditions lasts indefinitely, so any changes that are not made for one of the above reasons and is purely motivated by TUPE itself, will not be enforceable even if they happen a significant time after the transfer
- If there are any proposed changes, then these need to be consulted on with your affected employees (or their representatives) before the transfer takes place (see point 4)
- Provide employee liability information to the incoming employer
- You’ll need to provide the following information a minimum of 28 days before the transfer:
- The identity (usually the name) and age of the employees who will transfer
- Information contained in their employment contracts in relation to their terms and conditions such as pay, hours of work, holidays, length of service and so on
- Information about any relevant collective agreements if there are any
- Details of any disciplinary action taken against an employee in the last 2 years
- Details of any employee grievances raised in the last 2 years
- Details of any legal action (before the court or employment tribunal) brought against the employee by an employee in the last 2 years and information about any potential legal action
- You’ll need to provide the following information a minimum of 28 days before the transfer:
- Inform the affected employees
- If your business as a whole has less than 10 employees you should meet with affected employees to give them the required information about the transfer and any information about proposed measures that you have received from the incoming employer
- If you have more than 10 employees, you’ll need to invite affected employees to elect representatives to receive and pass on information about the transfer
- You’ll need to provide information on:
- The fact the transfer is taking place, when and why
- Implications for affected employees
- Measures that will be taken by the incoming employer
However, if you are the outgoing employer during a TUPE, you don’t have to do this alone. We can help you through the process and ensure that you not only meet your obligations, but also that the process runs as smoothly and pain free as possible for both you and your employees. If you are going through a TUPE, then please do get in touch either by email catherine@lmcukservices.co.uk or phone on 0800 953 4020 and we will be happy to help.