TUPE: Employers must provide full information about employees

Under section 1 of the Employment Right Act 1996, employers must provide most employees with particular information about their employment including start date, scale/rate of remuneration, and terms relating to hours of work. 

From 6 April 2020, this right will be extended to all employees and workers and the following new information will also need to be provided:

• The days of the week the worker is required to work, whether working hours or days may be variable and details of how they may vary
• Any entitlement to paid leave including maternity leave and other types of family leave
• Any other benefits provided by the employer
• Any probationary period including any conditions and its duration
• Any training entitlement provided by the employer including details of training the employee is required to complete and other required training which is not paid for by the employer

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”), transferors are required to provide Employee Liability Information (“ELI”) to transferees which includes “those particulars of employment that an employer is obliged to give to an employee pursuant to section 1 of the 1996 Act”.   Therefore, the changes above, would appear to impact on the transferors requirements under TUPE.

Of particular importance in this area, is the requirement to provide details of all benefits.  Currently, only certain benefits are caught by section 1 (such as terms on pensions and sick pay) but this new wording effectively creates a ‘catch all’ provision.   It is unclear whether this requirement is intended to apply to discretionary benefits; certainly on a literal interpretation that would appear to be the case.  This is a welcome change for transferees, who often struggle to get adequate information to assess the rights and obligations transferring to them.   Whilst transferees will still need more information, this does go some way to helping them get a more complete picture.   It would be prudent for transferors, who are involved in TUPE situations now, to ensure this new information is provided for transfers taking effect on or after 6 April next year.