TUPE transfers impact both employees’ rights and employers’ obligations.
We can help reduce TUPE legal risks.
The Transfer of Undertakings (Protection of Employment) (TUPE) regulations apply to employers of all sizes, both in the private and public sector and whether commercial or not for profit, where there is a relevant business transfer.
The regulations exist to ensure employers follow the correct legal procedure for a relevant business transfer, and that employees’ terms and conditions are preserved when their employment transfers to a new employer.
For both the old and new employer, it will be important to understand the employment liabilities relating to the transfer to avoid the risk of employment law claims.
TUPE legal advice
TUPE considerations are far-reaching, requiring specialist knowledge and experience to identify and advise on the full ambit of legal duties and liabilities. Specific areas of risk and consideration for employers relating to TUPE include:
- Relevant transfers – While in some circumstances it may be obvious that TUPE applies, this may not always be the case. ‘Relevant’ transfers could include selling or buying part or all of a business as a going concern, outsourcing or taking over a lease or licence of premises to operate the same business from those premises. It is best to take advice in light of the specific transaction and relevant transfer to ensure lawful procedures are followed and employees’ rights are protected.
- Transfer of employment liabilities – Affected employees retain their rights to claim for unfair dismissal, redundancy or discrimination, or unpaid wages, bonuses or holidays and personal injury claims. Incoming employers will require full knowledge of existing,and assessment of potential, employment liabilities.
- Dismissals or redundancies – Dismissals are deemed automatically unfair if the sole or principal reason for the dismissal is the transfer. However, dismissals may not be automatically unfair where the dismissal is for an economical, technical or organisational reason (an “ETO” reason) requiring a change in the workforce. Relying on an ETO reason will require professional guidance to avoid falling foul of this complex area.
- Changing employees’ terms and conditions – Attempts to change terms and conditions of employment where the sole or principal reason for the change is the transfer will be rendered void unless there is a valid ETO reason involving workforce changes. If changing terms unrelated to the transfer, or relying on changes under TUPE 2014 to make changes, take specific legal guidance to avoid future legal problems such as claims for constructive dismissal.
- TUPE and data protection – TUPE requires the outgoing employer to disclose specific ‘Employer Liability Information’, which includes personal data about affected employees. This is considered lawful disclosure of data under the GDPR, where it is made 28 days prior to the transfer. Requests for additional or specific information relating to employees (such as absence records) should be considered under advice to avoid breaching duties under the GDPR.
We can help
DavidsonMorris provides specialist legal advice to employers on the legal implications of TUPE.
We can advise on all aspects of TUPE and HR legal risk management including:
- Whether TUPE is applicable to the transaction
- Employee rights, both statutory and under the contract of employment, such as continuity of employment, pay and accrual of leave
- Outgoing employer duties, rights & powers such as disclosure of Employee Liability Information, duty to inform & consult with employees through appropriate elected representatives
- Incoming employer duties, rights & powers
- Redundancies & dismissals for ETO reasons
- Transfer of collective agreements
- Changing or attempting to harmonise terms and conditions post-transfer
We are experienced in advising both transferors (the outgoing employer) and transferees (the incoming employer) on the required legal process to follow and on their respective employment liabilities as triggered by the transfer.
We can help to develop strategies that enable you to ensure full commercial benefit is derived from the transfer, by leveraging your powers and rights as an employer and managing the risk of more complex requirements such as varying employee terms or redundancy.