Obligations of the Outgoing Employer under TUPE

When employees are being transferred to another organisation under TUPE, there are certain obligations that the outgoing employer (the company the employees are leaving) needs to comply with. These include:

Identify which employees will transfer

As early as possible, identify which employees will transfer to the incoming employer. If the whole business is being sold or merged, then this will be all the employees. If the TUPE is occurring due to a change of service provision, then this is likely to include only the employees that work on this contract for most of their time. However, we can help you work out which employees TUPE will apply to.

Request information from the incoming employer about any measures

The measures refer to any changes that the incoming employee would like to make to the employment arrangements. This can include any potential redundancies, any changes to contractual terms such as pay dates, working patterns or location.

As the employees’ terms and conditions are protected under TUPE, only changes that derive from one of the following reasons can be made:

• • • Economic – related to how the company has been performing
    • Technical – related to the processes or equipment used by the company
    • Organisational – related to the structure of the business

The protection of the employee’s terms and conditions lasts indefinitely, so any changes that are not made for one of the above reasons and are purely motivated by TUPE itself, will not be enforceable even if they happen a significant time after the transfer

If there are any proposed changes, then these need to be consulted on with your affected employees (or their representatives) before the transfer takes place (see point 4)

Provide employee liability information to the incoming employer

You’ll need to provide the following information a minimum of 28 days before the transfer:

• • • The identity (usually the name) and age of the employees who will transfer
    • Information contained in their employment contracts in relation to their terms and conditions such as pay, hours of work, holidays, length of service
    • Information about any relevant collective agreements if there are any
    • Details of any disciplinary action taken against an employee in the last 2 years
    • Details of any employee grievances raised in the last 2 years
    • Details of any legal action (before the court or employment tribunal) brought against the employee by an employee in the last 2 years and information about any potential legal action

Inform the affected employees

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 that you have received from the incoming employer

If you have more than 10 employees, you’ll need to invite affected employees to elect representatives to receive and pass on information about the transfer

You’ll need to provide information on:

• • • • • The reason the transfer is taking place, when and why
        • Implications for affected employees
        • Measures that will be taken by the incoming employer

However, if you are the outgoing employer during a TUPE transfer, you don’t have to do this alone. We can help you through the process and ensure that you not only meet your obligations, but also that the process runs as smoothly and pain free as possible. If you are going through TUPE, then please do get in touch either by email catherine@almc.co.uk or phone on 0117 970 2755 and we will be happy to help.