TUPE

TUPE stands for the Transfer of Undertakings (Protection of Employment) Regulations 2006 which aim to protect employees when the business in which they work changes hands or there is a change of service provider.

If TUPE applies, the transferee (i.e. the new incoming business owner or service provider) takes on some of the rights and liabilities associated with the employees who were employed by the transferor (i.e. the old business owner or service provider).

The contracts of employment for employees employed by the transferor (i.e. the old business owner or service provider) and assigned to the ‘organised grouping of resources or employees that is subject to the relevant transfer’ will transfer automatically to the transferee (i.e. the new business owner or service provider) and continue unchanged, with the exception of some old age, invalidity and survivor benefits under occupational pension schemes.

Yes.  Transferors are obliged to provide certain information (known as Employee Liability Information) about the transferring employees to the transferee at least 28 days before the transfer takes place.  This includes the identity and age of the employees and certain information relating to the employees’ employment terms, disciplinaries, grievances, claims and collective agreements.

For TUPE to apply, there must be a change of employer.  A genuine transfer of shares involves a change in the ownership of share capital only, not a change of employer, so TUPE would not apply.  However, there may be TUPE transfers surrounding the share sale, for example if assets are moved around in preparation for the share sale or if after the transfer another company (such as a parent company) takes over the day to day running of the company.

Transferors are required to provide certain information to ‘appropriate representatives’ of their affected employees.  If there are no representatives and, after being given an opportunity to elect representatives following a reasonable timeframe they fail to do so, the information must be provided to the affected employees themselves.

This information includes:

• The fact that a transfer is to take place, the date or proposed date of the transfer and the reasons for it;
• The legal, economic and social implications of the transfer for any affected employees;
• The measures, which it envisages it will, in connection with the transfer, take in relation to any of its affected employees (if no measures are envisaged it should state that);
• The measures, in connection with the transfer, that it envisages the other party will take in relation to its affected employees (if no measures are envisaged it should state that); and
• Suitable information relating to the use of agency workers e.g. the number of agency workers working for it, the parts of the business where they work and the type of work being carried out.

Transferors are also required to provide certain information (known as ‘Employee Liability Information’) to the transferee at least 28 days prior to the transfer.  This includes the identity and age of the employees and certain information relating to the employees’ employment terms, disciplinaries, grievances, claims and collective agreements.

No, not on TUPE alone. TUPE operates to preserve employees’ existing terms and conditions, not to enhance them.   There may be circumstances where employees are able to rely on TUPE in conjunction with something else, like equal pay legislation, to request enhanced terms but this will be dependent on the circumstances in each case.

The transferor must provide certain information about the transfer to the appropriate representatives “long enough before the relevant transfer to enable the employer of any affected employees to consult the appropriate representatives of any affected employees”.