TUPE transfers

Practical advice on what to say and do to avoid TUPE claims from your employees

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TUPE transfers

Any transaction which involves the transfer of staff will trigger the strict framework of protections for employees given to them under “TUPE”. The TUPE protections give employees the ability to bring claims against employers who fail to comply with TUPE. If many employees are affected, then non-compliance TUPE costs can be significant. 

We tell you how to stay within the TUPE framework and operate the transfer of staff to suit your commercial objectives.  We work for businesses transferring staff as part of a sale, re-organisation or outsourcing contract. We also work for businesses who are acquiring staff as a result of a commercial transaction such as a successful contract tender.

Our expertise lies in the detailed knowledge of employment law and the TUPE regulations.  We advise businesses across a range of sectors and deal with TUPE transfers involving a few through to many staff.  Our advice covers what to do with the employees who are transferring. We also deal with what impact there may be in TUPE employment protection terms on those left behind.

Helping businesses who do not have an HR team

Many of our clients do not have HR teams.  In these cases we can provide all of the documentation required in the TUPE process and manage the consultation process.

What TUPE means in practice

In a nutshell the effect of TUPE on an employer connected with a business transfer is that there is:

  • An automatic transfer of employment terms and conditions for any employee who is employed immediately before the transfer by the business or business unit that is transferred;
  • Both the old and the new employer have consultation obligations which vary depending upon the number of affected employees.

When TUPE applies

Examples include:

  • Staff transfers within different subsidiaries of a business,
  • Outsourcing and insourcing;
  • Trade sales involving the sale of assets.

Identifying the TUPE risk areas

We have set out some of the more common risk areas we find our clients require our help with. We deal with TUPE issues regularly and it is likely that even if not on the list we will have dealt with a query like yours below so please get in touch.

How do I go about consultation with the employees?

The TUPE consultation process depends on the number of “affected employees”. Not all staff will be “affected” and so can be excluded from the TUPE process.  If you miss any “affected” employees from the list of those you consult with there will be a potential exposure under TUPE.  The TUPE legislation is not that prescriptive on what “affected” means and there is a body of case law which may impact on your situation you may need to consider.  We can tell you who you need to consult with, what you need to say and when you need to say it.

How do I make redundancies arising in the business related to TUPE?

Often the business transfer results in redundancies for either the transferor and/or the transferee’s business. These redundancies can be automatically regarded as unfair dismissal if connected to the TUPE transfer. We have the experience and knowledge to navigate around potential employment law claims. Often we can find a solution. Usually to protect your position we will recommend settlement agreements.

When can I harmonise the employment terms and conditions for the merged businesses

: We are asked this question many times.  It is a tricky area because if the change has a negative impact you may be caught under TUPE despite offering others more attractive terms. Problem areas can arise in relation to working hours, non-compete and restrictions, pensions and benefits. The TUPE regulations do not provide definitive timescales. In practice, often a judgement call is required on whether the change can be described as TUPE related or for some other reason which may fall outside of TUPE.

The restrictive covenants do not fit the new business needs

This is a common business problem especially for more senior executives. How the problem can be approached will depend upon how the restrictions were drafted and what the new business requirements demand.  Usually we can find a solution but care is needed to avoid falling foul of TUPE.

Practically approaching TUPE issues

There is already a substantial body of case law dictating how to approach TUPE in practice. New cases frequently emerge. What’s more, TUPE regulations are evolving.  You will need up to-date advice which we can provide.

Our TUPE track record

  • Advising a firm of fiduciary agents who were re-organising their business in order to sell a division to a third party. Head office staff were retained in the company not being sold.
  • Working with a team of management consultants who wanted to dismiss an employee on maternity leave pre-TUPE transfer on grounds of redundancy.
  • Review of employment contracts for the transferring business to see how they would fit into the employment contracts and policies for the acquiring business.  We suggested modifications that would not fall foul of TUPE and modifications that could trigger a liability.
  • Advising a firm of accountants on the script for the TUPE consultation process and election of representatives.
  • Practical advice for a firm of advertising agents who were outsourcing their back office functions on how to deal with absent employees.

Often we are involved in transactions which trigger the TUPE transfer such as the outsourcing exercise or business transfer. We run the commercial transaction alongside the TUPE process.

TUPE is a specialist area of commercial and employment law. If poorly planned, it can be costly. Our experience enables us to focus on the key issues, manage the work force to fit your objectives and avoid the risk of TUPE related claims.