Business Transfers - TUPE

The Transfer of Undertakings Protection of Employment Regulations 2006 (‘TUPE’) operates to safeguard employees’ rights when a business in which they work changes hands.

A TUPE transfer often happens when:  

• an organisation, or part of an organisation, transfers its business from one employer to another
• a service transfers to a new provider, for example when a cleaning company takes over a cleaning contract for office cleaning from another cleaning company

When TUPE applies:

• the employees’ jobs usually transfer over to the new employer
• the employees’ employment terms and conditions transfer to the new employer
• continuity of the employees’ employment is maintained

Duty to Provide Information

When TUPE applies, the old employer must provide the new employer with specific information about the employees who are transferring (known as 'employee liability information').

The old employer must give this information to the new employer at least 28 days before the transfer happens.

If the old employer does not provide this information or if the information is incorrect, the new employer can bring a claim against the old employer and could be awarded at least £500 for each employee the old employer gave incorrect or no information for.

Duty to inform

Before a TUPE transfer happens, employers must tell the trade union or elected employee representatives:

• that the transfer is happening, when it’s happening and why
• how the transfer will affect the employees
• whether any changes are being proposed
• how many agency workers they are using and what types of work they are doing

Duty to Consult

Employers must consult the trade union or elected employee representatives about any changes arising from the transfer that would affect the employees (called ‘measures’).

Small-Scale Transfers

In some circumstances where the employer does not have a recognised trade union or employee representatives, they can inform and consult directly with their employees if they either have fewer than 50 employees or if the transfer involves fewer than ten employees.

Failure to Inform and Consult

If an employer fails to inform and consult affected employees in accordance with TUPE, an employment tribunal can penalise the employer by awarding compensation of up to 13 weeks’ pay to each employee. 

How We Can Help

At Dutton Gregory, we offer a full range of legal services to help employers manage TUPE issues effectively.

Our specialist team of employment law experts can help you:

• understand and navigate the complexities of TUPE
• manage the election of employee representatives
• manage the due diligence process including providing or assessing the Employee Liability Information
• undertake the TUPE information and consultation process
• assess any TUPE clauses in the business transfer documentation

What next?

For more information about employment law advice, please contact us at contact@duttongregory.co.uk or contact Darren Tibble as head of our employment team.