Asset transfer – securing major contracts

To transfer the NHS contract we had to square off a number of issues including:

• Inheriting staff under TUPE and harmonising them within the business.
• Inheriting business premises which were surplus to requirements.

Transfer of Employees

As the sale was the transfer of a business undertaking as a going concern, the employees currently employed in the business would automatically transfer to our client as the Buyer of the business under the Transfer of Undertakings (Protection of Employment) Regulations (TUPE).  TUPE meant that the current employees transferred on the same terms of employment as they had with the Seller. The transfer includes taking with them the accrued rights they had accrued during their previous employment.  This means if the employee had 4 years of continuous employment with the Seller, an employee would take that period of continuous employment across to the Buyer so that they would be treated as if they had always been employed by the Buyer.  We worked with the Seller to meet with the employees and discuss their concerns to ensure that the TUPE obligations were addressed.

Our client did not have the need for all of the staff transferring from the Seller. But we knew that redundancy as a result of a TUPE transfer is automatically unfair.  The risk was not unsubstantial as some of the technicians were highly paid and had long periods of service.  We worked with the Seller to negotiate the terms of settlement agreements entered into between the individual employee and both the Seller and our client – we knew tri party settlement agreements would close down the risk of employment related claims and Tribunal action.