Many employers may not even be aware that TUPE exists, let alone have asked the question “What is TUPE?” Ignoring this business regulation however, may see you in breach of employment law and in front of an employment tribunal.
So what do you need to know? TUPE is short for Transfer of Undertakings (Protection of Employment) Regulations 2006. This is a set of laws that protects your employees and their contracts of employment should you sell part or all of your business or transfer any jobs into, or out-of, house. It doesn’t matter how big or small your company is, if the business transfer will involve a change of service provider and activities carried out by the new provider will be ‘fundamentally the same’ post-transfer, then TUPE regulations apply.
When an employee finds themselves transferring to a different employer, whether they are transferring to or from your employment, they have the legal right to undertake that transfer under the same terms and conditions of their previous employment. Even if the new employer of the transferring employee would not usually provide these terms, provisions must be made to allow them to continue. Terms that generally transfer as part of these regulations include pay, hours, sick pay and company car entitlement, trade union agreements to name just a few.
It is important to note that you cannot make changes to the terms and conditions of employment either after or before the transfer – any such action will be considered void if done as the sole or principle result of the transfer. Similarly, any dismissal that can be said to have occurred as a direct result of a transfer is automatically considered an unfair dismissal.
So how do you make sure you’re meeting the regulations in practice? As an employer, it is your responsibility to inform and consult with employee representatives and employees who are impacted by any transferral of work or services. If there are any changes made to these measures following the transfer, then another consultation with the affected employees or their representatives will need to take place.
As an employer with outgoing employees, you will need to provide the incoming employer with written details of the transferring employees (including identity, age, particulars of employment, disciplinary and grievance records, employee claims and collective agreements) together with any other rights and liabilities that will transfer. This information will need to be provided at least 28 days before the transfer itself – most companies however, aim to gather this data much earlier. Failure to comply with regulations regarding informing and consultation can cost you up 13 weeks pay as compensation depending on the severity.
Not sure if TUPE applies to your upcoming business transfers? Confident you know what “continuity of employment” really is? TUPE can be complicated, but with our help, you don’t have to worry about it. HELP provide legal support and advice that’s available 24/7 on a monthly retainer – no lengthy contracts! Our friendly support team are only a phone call away, no matter where you are. Contact us today to learn more about how we can HELP your business, simply give us a call on 01543 431050 or fill out our online contact form.