Acquisition or takeover opportunities involving TUPE (Transfer of Undertakings, Protection of Employment regulations 2006) shouldn’t be rejected. We explore the complexities and myths surrounding TUPE and how they can be overcome.
TUPE only applies in certain situations.
The legal position
TUPE applies where there is a relevant transfer, defined as transfer of an economic entity which retains its identity. This can be when a business as a whole, or part, is transferred, or where there is a service provision that has been transferred, such as a cleaning or catering contract. The legal position is complex and so professional legal advice, as part of a transfer, should be sought.
Where TUPE applies
There are certain obligations that the transferor and the transferee must meet. This starts with the provision of ELI, or employee liability information, 28 days prior to the proposed date of transfer. This ensures the transferee has all the necessary information about staff, compliant with GDPR, and the liability to be taken on, to therefore assess the risk adequately before proceeding.
Information and consultation
Employees that are due to transfer should be informed and have the necessary information provided. This can be done directly for under 10 employees, or at least through employee representatives if more employees are affected. Generally, these consultation meetings are best held face to face, to ensure that individuals have the opportunity to meet the key managers in the transfer process, and to discuss any concerns they may have about the measures that affect them.
TUPE is complex
However when you allow sufficient time to plan, communicate and engage, it makes for a smooth transfer and the ability to maintain engagement with staff. Trust is built in the consultation meetings, through the delivery of key business information, and by providing an opportunity to discuss each individuals concerns. Agreements should then be delivered and maintained, especially post-transfer.
Retention of terms and conditions of employment
Post transfer there may be a temptation to change these, or harmonise to bring consistency across the company. However, any dismissal or potential contractual changes due to the transfer itself could be automatically unfair.
This is the most important element of the transfer process, aside from meeting your legal obligations. The more staff know and the more they are able to trust in what you say, the more likely you are to have an engaged workforce underpinning your business for the future.
Plan, involve, communicate and engage. Then communicate some more!
TUPE is complex. Yes, you will need advice to navigate the complexities, but it is achievable.
If you want to know more about successfully navigating TUPE, HR People Support are running an “HR Matters” seminar on Transfers, Takeovers and TUPE on 17 November 2021.
Contact Gemma Irvine, Senior HR Consultant at HR People Support Ltd for more information, specialist advice or guidance on TUPE, or any other HR issue impacting your business.