TUPE is the more common name for the Transfer of Undertakings (Protection of Employment) Regulations. It can apply when there is a transfer of a business or service from one organisation to another. Whilst many employers have heard of TUPE, it is one of those areas that can give rise to some common questions, so what five basic things is it helpful to know?
TUPE can apply in two types of situations, business transfers and service provision changes. In general terms:
TUPE can be a tricky area, so if you have a possible business transfer or service provision change situation it is important to contact Kingfisher Professional Services Ltd for advice.
TUPE has significant implications for all those involved as it gives rights and protections to affected employees as well as placing obligations upon employers. A failure to recognise where TUPE applies can in some cases lead to employees being able to complain to an employment tribunal about how they have been treated, for example that they have been automatically unfairly dismissed in connection with the transfer, that they have been constructively dismissed or that their rights have otherwise been infringed, such as where impermissible detrimental changes are made to the terms and conditions of an employment contract.
Where TUPE applies, it is important to be aware that amongst other things:
Where TUPE applies, the transferor must provide the transferee with ‘employee liability information.’ This must be done at least 28 days before the date of the transfer. It is important for transferees to ensure they get the employee liability information as it will help them to determine whether they want to take on the business/contract.
The employee liability information that must be provided is:
Transferors must provide this information about any employee who is expected to transfer from their employment to the transferee’s employment. If the transferor has dismissed an employee before the transfer, they will also need to provide the transferee with employee liability information about that employee where the dismissed that employee was because of the transfer, or where they dismissed the employee for a reason connected to the transfer which was not an economic, technical or organisational reason ‘entailing changes in the workforce’.
If you have a query regarding employee liability information or would like a covering letter regarding the provision of employee liability information, please contact your Employment Law Specialist who will be happy to help.
There are rules regarding informing and consulting about the transfer, which in most cases is usually undertaken with employee representatives. If there are not already appropriate representatives in place, such as a recognised trade union, an election may need to be held to appoint representatives specifically for TUPE purposes.
It is important to be aware that if you breach your information and consultation obligations, an employment tribunal can award up to 13 weeks’ gross pay for each affected employee.
Whilst TUPE may seem daunting and there can be much to think about, whether your organisation is the potential transferor or transferee, remember, Kingfisher Professional Services Ltd is here to help. If you think your organisation may have a TUPE transfer situation, please contact us for advice.
If you have an employment law matter you would like assistance with, please do not hesitate to get in touch as we are happy to help.