TUPE Advice

A “TUPE transfer” is one where the Transfer of Undertakings (Protection of Employment) Regulations apply. Typically, this is relevant to the purchase or sale of a business, but the framework can also apply to the transfer of part of a business, the transfer of a lease, the award of a grant, the retendering of a contract or outsourcing / insourcing a service or function.

The Regulations exist to protect employees and impose restrictions on what employers can do in or around such a transfer. Each employer, whether transferring or receiving staff, must be aware of its obligations to inform and consult staff, what information must be given to other parties in the transaction, as well as limitations on dismissing staff or varying their terms and conditions. Getting this wrong can be costly - compensation of up to 13 weeks' pay per employee may be awarded where the transferor/transferee has not adequately discharged their obligations under the Regulations.

How we can help

Our Employment team work closely with our business clients and corporate advisors to identify the application of the TUPE regulations and the duties which must be discharged. We support our clients in ensuring their compliance with the statutory requirements in an economic and commercially sensitive manner.

If you are entering into a contract where TUPE might apply, on commencement or exit, our team can assist with drafting recommendations to avoid or limit potential liability.

Our services include:

• Supporting clients in any election of employee representatives and the consultation of representatives in respect of the proposed transfer;
• Preparing the necessary information letters to provide specified information to the buyer/seller and affected staff, and assist where appropriate with the conduct of a consultation process;
• Conducting “due diligence” to identify the risk and implications of any claims transferring between buyer and seller;
• Handling any employee objections to the transfer by advising on the terms of a letter of objection to transfer or a settlement agreement, where appropriate.
• Considering warranties and indemnities to allocate risk between the buyer and seller;
• Advising on “post transfer harmonisation” between those terms and conditions which automatically transfer in their existing form and identifying where any alterations may be lawfully made; and
• Supporting through any redundancy or reorganisation process which may be necessary, ensuring there is an adequate economic, technical or organisational reason entailing changes in the workforce and a fair procedure followed to avoid claims that a termination is “automatically unfair” where the employee is dismissed for a transfer-related reason.