TUPE – Acquiring or
transferring a business or service

A transfer of undertakings occurs if a business transfers from one owner to another and as a part of the transfer some or all of the following transfer:

  • Tangible assets e.g. buildings/equipment
  • Intangible assets e.g. licences
  • The major part of the workforce
  • Customers
  • Jobs
  • Organisational structure
  • Business finance

If any or all of the above are involved then a transfer of undertakings may be deemed to have occurred. To take a straightforward example, buying or selling a pub, hotel or restaurant will almost always be classed as a transfer of an undertaking. TUPE can apply to service contracts as well as the sale of a part or all of a business. For TUPE 2014 regulations to be engaged the employees (of the service contract or part of the business) will be in scope to transfer and therefore protected by the regulations if they are ‘wholly or mainly’ assigned to work in that part of the business (or contract) at the point of the transfer of it.

HR Outsource customers should contact their myHRdeptwho will be happy to prepare letters etc on their behalf and to advise on the TUPE process. We are also happy to consider project managing the HR implications of a TUPE transfer (inbound or outbound). Please contact us to discuss your requirements.

Contact us to discuss your HR requirements or call 01628 820515.

The new owner will almost always be liable. For this reason it is VERY important that you conduct a thorough due diligence audit before you proceed with the purchase of a business. In employment terms you should obtain information about:

  • The number of employees and jobs
  • Length of service
  • Terms and conditions of employment in operation (copies of contracts)
  • Employees absent at the time of the audit and any substantial reasons (e.g. maternity, long term sick)
  • Outstanding grievances and disciplinary cases
  • Outstanding or expected tribunal cases
  • Outstanding or expected injury claims

It would be wise to seek an indemnity from the existing owner against any claims arising. Where personal data is to be sent from the old employer to the new it should be anonymised.

myHRdept have handled numerous inbound and outbound TUPE projects for existing HR Outsource clients and one off projects for new clients. Contact us to discuss your HR requirements or call 01628 820515.

The 2014 TUPE laws state that the transferor (i.e. the person selling the business or transferring the service) and the transferee (the person receiving it) have a joint responsibility to ensure that consultation has taken place with the employees affected. This consultation may include the transferee’s existing staff as well as those acquired from the transferor.

Where elected employee representatives (or a trade union agreement) already exist for the purposes of consultation then the consultation exercise may be carried out with them. In the absence of these, the affected employees should elect employee representatives to consult with management on their behalf (except for ‘micro’ organisations of less than 10, in which case consultation can take place directly with the individuals.) Consultation must be meaningful and must include:

  • Why and when the transfer is going to happen
  • Legal, economic and social implications for affected employees
  • Whether any action is planned by the existing employer which will affect employees and, if so, what.

In some circumstances a failure to consult could result in an award of 13 weeks pay for each employee concerned 

The regulations also place an obligation on the transferor to supply minimum information to the transferee about the employees who will transfer. This information must include names, ages, contracts of employment or statements of written particulars, information about any collective agreements, disciplinary action or grievances in the last 2 years and details of any legal action taken by employees against the employer in the last 2 years.

A failure to supply this information could result in a penalty against the transferor of not less than £500 per employee transferring.

The regulations then are far reaching and will have implications for all who are considering buying or selling a business, or part of a business, or when considering a service provision change.

HR Outsource customers should contact myHRdept to prepare letters etc on their behalf and to advise on the TUPE process. We are also happy to consider project managing the HR implications of a TUPE transfer (inbound or outbound). 

myHRdept have handled numerous inbound and outbound TUPE projects for existing HR Outsource clients and one off projects for new clients. Contact us to discuss your HR requirements or call 01628 820515.

You should warn all employees as early as possible about the transfer and tell them that you will be consulting with them as required by law. For smaller transfers (less than 10) you may consult with eveyone, but for larger transfers you may have to elect represenatatives for the purposes of consultation.

Obtain from the new owner the measures he plans to take in relation to the employees who will transfer. Once information has been obtained inform the employees (or their representatives) in writing of the proposed date of transfer and of any measures to be taken that may affect them. Note that ‘measures’ may be taken only if they are justifiable on ‘Economic, Technical or Organisational’ (ETO) grounds entailing a change in the workforce.

To be ‘meaningful’ consultation must involve adequate information, adequate time and be conducted with a view to reaching agreement on any measures proposed.

After consulting/informing employees you should also advise them of the facts of the transfer and the identity of the new owner. In this communication you should advise them of any matters relevant to their no longer being your employees, e.g. occupational pension options.

The regulations also place an obligation on the transferor to supply minimum information to the transferee about the employees who will transfer. This information must include names, ages, contracts of employment or statements of written particulars, information about any collective agreements, disciplinary action or grievances in the last 2 years and details of any legal action taken by employees against the employer in the last 2 years.

A failure to supply this information could result in a penalty against the transferor of not less than £500 per employee transferring.

myHRdept have handled numerous inbound and outbound TUPE projects for existing HR Outsource clients and one off projects for new clients. Contact us to discuss your HR requirements or call 01628 820515.

TUPE exists to protect employees during a transfer of an undertaking. It specifically protects employment rights including pay and conditions and so a change in order to harmonise terms of employment with existing employees would not be allowable.

myHRdept have handled numerous inbound and outbound TUPE projects for existing HR Outsource clients and one off projects for new clients. Contact us to discuss your HR requirements or call 01628 820515.

Providing you have a strong business reason and can demonstrate at tribunal that your new structure does not need the number of managers that your acquisition of the new business would provide, then it should be reasonably safe to make some of the new businesses managers redundant. In some cases it is possible to start the redundancy consultation process before the transfer takes place.

HOWEVER……..you should be sure you have a good strong business case and you should not automatically select for redundancy only from the new management team – this would probably be found unfair – you should also consider your own management as potential redundancy cases.

For example, an employer runs two restaurants and employs 6 managers. He is about to buy a third restaurant which in itself employs 5 managers. He has decided (and can show) that he can run all three restaurants with only 8 managers i.e. he has 3 too many. To avoid unfair dismissal claims he must select the 3 managers to be made redundant from his total pool of 11 managers, not just from the 5 new ones.

The usual rules of redundancy apply, i.e. establishing fair and objective selection criteria, consulting effectively with the employees who may be affected and otherwise follow a fair procedure.

myHRdept have handled numerous inbound and outbound TUPE projects for existing HR Outsource clients and one off projects for new clients. Contact us to discuss your HR requirements or call 01628 820515.

If an employee refuses to transfer then he effectively becomes no longer employed at the time of the transfer, in effect as though they had resigned. Under such circumstances the employee should a) be informed that this could be the result; and b) be consulted on the reasons for the objection.

Both the existing and new employers should be careful to follow a fair and thorough transfer consultation process and avoid breaching contracts of employment. The existing employer should remember the duty of trust towards the employee and advise them clearly at all stages of the process.

myHRdept have handled numerous inbound and outbound TUPE projects for existing HR Outsource clients and one off projects for new clients. Contact us to discuss your HR requirements or call 01628 820515.

No. TUPE regulations expressly state that service carries over from the old employer to the new. So an employee who started with you in 1992 and transfers to a new employer next week is still deemed to have service originating in 1992. This is important since length of service affects redundancy entitlement, notice periods and certain other employment benefits.

myHRdept have handled numerous inbound and outbound TUPE projects for existing HR Outsource clients and one off projects for new clients. Contact us to discuss your HR requirements or call 01628 820515.

Technically no, except where an employee changes role post transfer.  Nevertheless pragmatically time will erode the TUPE protection and changes may be made with caution and having obtained prior advice from myHRdept.

myHRdept have handled numerous inbound and outbound TUPE projects for existing HR Outsource clients and one off projects for new clients. Contact us to discuss your HR requirements or call 01628 820515.

Providing the employee agrees, yes. Recent case law has established that in an example when an employee is offered more favourable terms following a TUPE transfer he may choose between the old and the new. The case seemed to indicate however that the subject of the change would be a continuing choice for the employee, who could also change his mind later and revert to the old term.

Note, whilst an employee can opt to accept more favourable terms (subject to the caveat above) he cannot waive his existing terms towards terms that are less favourable following a TUPE transfer. Whether or not he agrees to the less favourable terms a court will assume that the old more favourable terms will continue to apply indefinitely.

myHRdept have handled numerous inbound and outbound TUPE projects for existing HR Outsource clients and one off projects for new clients. Contact us to discuss your HR requirements or call 01628 820515.

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