TO TUPE or not to TUPE

We are regularly asked about TUPE and when it applies. It can appear confusing but the Transfer of Undertaking (Protection of Employment) Regulations 2006 cover situations where an economic entity/business, or a service provision, transfers from one organisation to another.

We have listed the basics to be aware of, but please come to us in the first instance if a TUPE situation occurs.

Who transfers?

Business transfers: All employees assigned to the business (or part) that is transferring will transfer with it.

Service provision transfers: The position becomes complicated for employees who have split job functions, some of which fall within the transferring business and some which don’t. The amount of time spent on each activity may be a guide but might not be an accurate indicator in all cases. Sometimes it may be necessary to look at the nature of the job and identify core/key tasks, as these situations are almost always based on individual facts.

Which employment rights transfer?

Where an employee transfers, the following rights also transfer with them to the incoming employer:

  • Contracts of employment, including all terms and conditions of employment such as pay commission and bonus entitlements, holidays, job title and function, and sick pay provisions. There are separate rules regarding pensions (please contact us if you need us)
  • Contractual provisions such as workplace flexibility or mobility
  • Continuity of service
  • Accrued entitlements such as holiday or bonuses

Please note, employees who transfer are not regarded as dismissed under TUPE, so there is no entitlement to a redundancy payment or pay in lieu of notice unless there is an actual dismissal.

Process

Before starting any process, please contact us to brainstorm and come up with a bespoke process and strategy for your particular TUPE. They are all different and although each one will be similar, there will be intricacies to be aware of.

Both incoming and outgoing employers need to consider:

  • Inform/Consult about the transfer and any measures
  • Proposed date of transfer
  • Identify who will transfer
  • Provide or Request ELI

What is ELI?

Employee Liability Information is data that outgoing employers must pass to incoming employers about the employees who are being transferred.

The information includes age and identity of the employees in question, their employment particulars, their disciplinary and grievance records, details of any collective agreements, and details of any outstanding claims against the outgoing employer.

This information must be provided not less than 28 days before the transfer.

Should you have any questions feel free to reach out to our help line. DLP advisers are available to answer any questions you may have—24 hours a day—at 0330 400 4454.

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