TUPE – A Deeper Understanding

Whether you work in a HR department or operations in a Business you may have heard of TUPE. TUPE is the law that protects employees when one business purchases another. As with the commercial elements of the sale, there is also an expectation to manage the relationship with employees through notification and consultation. There is a significant penalty for those employers that do not follow the rules of TUPE.

We have highlighted below some frequently asked questions by employers.

FAQS

  1. If a TUPE transfer results in redundancy, which employer is responsible for the redundancy process?

It is the transferee employer that is responsible for carrying out the redundancy process and making redundancy payments.

  1. What happens to annual leave accrued when an employee transfer in a TUPE situation?

The balance of annual leave entitlement transfers to the new employer under TUPE. The transferee must allow the employee to take the balance of the leave entitlement before the end of the annual leave year.

  1. What happens to the length of service of employees?

The length of service an employee has accrued with the transferor will continue with the transferee,

  1. Can I change an employee’s terms and conditions for an employee that was TUPE’d 12 months ago?

There is no end date to TUPE. Terms and conditions can only be altered via consultation with the affected employee or their representatives.

  1. When should I notify employees of an intended TUPE?

When you have a definite idea of the likely date of transfer and from this you can draw up a timetable of the steps required to undergo a TUPE.

  1. What are the risks of not carrying out a TUPE consultation?

If there is a failure to inform and consult, a complaint can be made to the Employment Tribunal. If successful, the tribunal can award whatever compensation it considers just and equitable having regard to the seriousness of the employer’s failure up to a maximum of 13 weeks pay per affected employee.

  1. Who would be eligible to pay the tribunal if an award was given?

Information and consultation failures can result in joint and several liability between the outgoing and incoming employers, although the contract governing the transfer cab cater for apportionment of liability here.

  1. What will happen to the personal records of employees?

All employee records will be passed to the transferee in line with General Data Protection Regulations.

  1. What will happen to employees on maternity leave during the transfer?

The transferor should contact the individual on maternity leave and inform them of the intended change. If possible, the employee should be invited in for consultation. The information for the individual should be passed to the transferee for them to consult with the individual regarding the process for change.

  1. What will happen to employee on long term sick leave during the transfer?

Employees on long term sick should be contacted regarding the intended change and consulted if possible, in the same way as all other employees.

  1. What will happen to any ongoing disciplinary or grievance proceedings?

These will continue as normal and may be continued by the new owner.

  1. What will happen to my pay and other benefits?

All terms and conditions will remain the same as previously.

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