TUPE or Not TUPE That is the Question….
It’s an issue which affects many employers – sometimes when they don’t even realise it! So, what is TUPE and why do you need to be aware of it?
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.
It is important to be alert to TUPE because of the rights and protections it gives to affected employees as well as the obligations it places upon the employers involved.
When can TUPE apply?
In general terms, TUPE can apply in two types of situations:
- Business transfers: This is where an economic entity transfers, and it retains its identity after the transfer. This commonly occurs where a business is bought or sold.
- Service provision changes: This is where activities are outsourced, taken back in-house or there is a change of contractor. TUPE may apply in these situations if certain conditions are met, including where there is an organised grouping of employees whose principal purpose is carrying out the service activities in question.
If you have a possible business transfer or service provision change situation it’s important to stop and think – does TUPE apply? Then call *Kingfisher for advice on the facts of your case. TUPE has significant implications for employers as you will see below.
It’s important to be aware of the impact TUPE can have when it comes to your business transfer or service provision change. We’ve put together our top six things you need to know.
Where TUPE applies:
- Affected employees will automatically transfer from the old employer (the transferor) to the new employer (the transferee), unless the employee
- In respect of the employees, the transferee will take over the rights and liabilities of the transferor, save for a few exceptions.
- Employees terms and conditions are protected. There are very limited circumstances in which these can safely be changed.
- Employees are protected from being dismissed because of the transfer; such dismissals are automatically unfair.
- The transferor must provide the transferee with ‘employee liability information.’ This must be done at least 28 days before the date of the transfer. The employee liability information that must be provided includes information about the identity of the employees, their terms and conditions and any recent disciplinary action or grievances. If you are the transferee, it is important you ensure you get this information as it will help you to determine whether you want to take on the business/contract.
- There are rules regarding informing and consulting employee representatives about the transfer. It’s 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.
There’s always a lot to think about where TUPE is concerned so it’s important to contact Kingfisher as soon as possible so we can help you to get it right.
* Kingfisher references Kingfisher Professional Services Ltd