TUPE can be complex and daunting for any employer, so looking for professional support throughout this process is usually your best option.
What is TUPE?
TUPE refers to the Transfer of Undertakings (Protection of Employment) Regulations 2006, which requires that a business must transfer staff during a merger or acquisition, or when a business changes owners.
TUPE Regulations 2006 ensure that an employees’ terms and conditions and jobs are preserved when a business is transferred to a new employer. It effectively facilitates the automatic transfer of employees’ contracts of employment from one employer to another.
I know this seems really strange, as you want to choose your own staff – right?
When does TUPE apply?
There are two situations in which TUPE applies:
Business Transfers – This is when a business is sold in its entirety, or a particular part of the business is sold on to another person or Company i.e. a merger or takeover.
However, TUPE will not apply to a mere change in ownership unless it involves integration into another business, or the shareholder does more than a shareholder would normally do.
Service Provision Changes – A transfer will also be required through what is termed a service provision change. This is essentially where a particular piece of work is either outsourced to a contractor, taken in-house from a contractor, or changed from being provided by one contractor to another. A transfer of this nature would be effected provided that there are employees who are principally carrying out the activities concerned and provided the services transferring are ‘fundamentally the same’ as the activities carried our pre-transfer.
What effect does TUPE have?
TUPE essentially will cause the following to happen:
- Automatic transfer of employee’s employment to the new employer;
- Protection of terms and conditions;
- Protection from being dismissed as a result of the transfer – this is automatically unfair.
Can I make someone redundant following TUPE?
Potentially yes, but it is a bit more difficult than a normal redundancy because you have to not only follow the normal rules on redundancy, but you also need to satisfy what is known as an Economical, Technical or Organisational reason that must entail a change in the workforce. Sounds quite complicated right, so it is definitely a good idea to get some specialist advice in the complex area.
Do I have to tell the staff about the TUPE?
Absolutely you do yes. If it affects less than 10 people, you can probably consult individually, but if there are more than 10 staff members affected, you must consult collectively, and if you don’t already recognise a trade union or have an existing employee consultation forum set up, then you will need to specifically elect representatives to represent the interests of the affected staff members.
There are very prescriptive rules around how you must conduct this election process, and also what information you have to provide to the appointed representatives, but Guardian Support can help with an array of sample letters and forms to help you through the consultation process.
What is TUPE ELI?
ELI stands for Employee Liability Information. It is a prescriptive list of information that the Transferor (the original employer), must give to the Transferee (the new employer). It has to be provided a minimum period before the transfer, and it very prescriptive with what must be supplied. If you need help either knowing what information you need to send, or what you should expect to receive, our specialists can help with this.
Can I change people’s pay after a TUPE?
Unfortunately terms and conditions are generally preserved on a TUPE transfer. This can be really difficult for incoming contractors, particularly if the employees are paid more than you were budgeting to pay when you tendered for a contract. However, in some circumstances, terms and conditions can be changed, but it requires very careful planning and quite specific rationale.
Need support with TUPE?
Our employed HR and Employment Law Consultants have years of experience when it comes to successfully carrying out TUPE for businesses.
It is a complex process and can lead to redundancies, employee objections, effects on pension schemes and so much more, that’s why it is important that you fully understand your obligations and how to compliantly complete the procedure with as little impact on your business as possible.
With our extensive support, we can guide you through TUPE from start to finish to ensure that all your I’s are dotted and T’s are crossed making it as pain-free as possible.
As with all of our services, we can guarantee a professional and bespoke approach to TUPE which includes:
- Unlimited over the phone/email advice from your dedicated consultant
- Access to a comprehensive TUPE guidance document written by a qualified employment law expert
- Your named consultant sitting in on consultations
- The drafting of bespoke letters such as employee notifications and transferer and transferee letters
If you would like to learn more about our TUPE support service, then call us today on 0845 2626 260