TUPE Transfer – How to get the transfer process right and ensure you have the right support throughout the project
If you are faced with TUPE (Transfer of Undertakings Protection of Employment) a complex and technical transfer process aimed at protecting employees, either as the outgoing employer (the “transferor”) or incoming employer (the “transferee”), there are several crucial steps you need to follow to make sure you navigate through the process compliantly and avoid any employment tribunal claims.
Here based on ACAS’s guide we’ve put together checklists and TUPE advice for both employers, to help you understand the key steps to the process, whichever side of the transfer you’re on.
The steps involved in the TUPE process will vary depending on a variety of factors. Is the whole business being transferred? Is it certain service provisions impacted? Are you the incoming our outgoing employer?
Whatever the situation, there are 4 key factors to consider:
- Identifying affected employees
- Gathering information & Consultation
- Employee Liability Information (ELI) and due diligence
- Terms and Conditions
Our HR professionals and TUPE consultants have supported countless businesses through the TUPE transfer process and can help ensure you avoid potential pitfalls as you navigate the process.
The TUPE Checklists included here break down the tasks and what is required with a clear view on how Connor manages the process on a project by project basis.
To do List for the INCOMING Employer (Transferee)
As soon as possible, find out:
- how many transferring employees there are
- whether any of your current employees might be affected by the transfer.
Employee liability information (ELI) must be provided to you by the outgoing employer a minimum of 28 days before the transfer.
Details included at this stage are:
- The identity & age of the employees who will transfer.
- Terms & Conditions in their employment contracts including pay, hours of work, holiday entitlements, length of service and so on.
- Any relevant collective agreements.
- Details of any disciplinary action taken against an employee in the last two years.
- Details of any employee grievances raised in the last two years.
- Details of any legal action (before the court or employment tribunal) brought against the employer by an employee in the last two years and information about any potential legal action.
‘Measures’ is the term used for the changes to employment arrangements which an incoming employer may wish to make after the transfer.
They might include any potential redundancies, changes to contractual terms such as pay dates or pension arrangements, workplace relocation or different working patterns.
The outgoing employer requires this information so that they can consult on your proposed measures with their employee representatives and/or unions.
As an incoming employer, you can only make changes to the terms and conditions of employees that transfer in for Economic, Technical and Organisational (ETO) reasons.
Economic reasons are to do with how the company is performing
Technical reasons are to do with the equipment or processes the company uses
Organisational reasons are to do with the structure of the company
Any changes that you try and make that are motivated purely by the TUPE transfer will not be enforceable even if they take place a significant time after the transfer.
Before the transfer (with permission from the seller) arrange to meet with the transferring employees to discuss measures, check employee information and answer any questions the employees might have.
Identify any contractual benefits that must be provided to employees following the transfer such as death in service or private medical insurance. Make arrangements to continue to provide those benefits in good time before the transfer.
Write to transferring employees to formally confirm the details of their new employment.
To do List for the INCOMING Employer (Transferee)
Identify which employees will transfer to the incoming employer as soon as possible. All employees will transfer if you are selling the whole business. If you’re only selling part of the business however, carefully consider which employees are employed and allocated to the division of the business that is being transferred. The decision will depend on their roles before the transfer. Consider staff on short-term absences as well as those on fixed contracts and remember that agency workers aren’t transferable in this process.
Establish the measures the incoming employer intends to take after the transfer so that you can consult on the proposed measures with your affected employees (or their representative) ahead of the transfer.
This ELI information (as outlined above) will need to be provide a minimum of 28 days before the agreed date of transfer.
If your business (as a whole) has less than 10 employees you should meet with affected employees to give them the required information about the transfer and any information about proposed measures you have received from the incoming employer.
If you have more than 10 employees, affected employees should be invite to elect representatives to receive and pass on information about the transfer.
Information must be shared regarding :
- When and why the transfer is taking place
- Implications for affected employees
- Measures that will be taken by the incoming employer
Employers that fail to inform and consult during the TUPE process, risk, damaging employee relations and significant legal consequences with financial penalties.
Each employee not informed and/or consulted about the transfer could claim up to 13 weeks uncapped pay, so the cost of getting it wrong could be significant, both to the incoming and outgoing employer.
Data protection and TUPE:
Carefully consider GDPR when providing personal data. Whilst there is a lawful purpose for processing the data, an incoming employer should ensure that the outgoing employer has taken appropriate steps to ensure that they are GDPR compliant. This includes checking that the outgoing employer has relevant data protection policies in place in relation to employee data.
Both the INCOMING and OUTGOING employer have responsibilities in the TUPE process ,and it’s essential to make sure that all affected employees are adequately informed and / or consulted with – including employees in both organisations who may not be transferring, but who will still be affected as a result of the transfer.
To find out more about what we can do for you throughout your employee transfer / TUPE process, book a call with one of our experts.
With over 25 years of expertise, Connor consultants know the marketplace inside-out. We have the deep industry knowledge, understanding and resources to manage even large-scale, global outplacement programmes. We also offer programmes to support individuals in other stages of career transition, from career break returners to those considering retirement.
We’re proud to be different to other outplacement companies. When you work with Connor, you receive
- Face-to-face outplacement support for as long as you need it – our unique promise.
- Tailored outplacement programmes that benefit the individual and the business.
- Unlimited access to psychometric tools, as well as our acclaimed Connor career centre.
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