What is a TUPE transfer?
A TUPE transfer is when your employees’ employment moves from yourself as an employer to another as a result of one of the following:
- Business transfer: A business or part of a business is acquired by another company, which can include business mergers, where two companies close and pool together to form a new one;
- The identity of the employer must change to be protected under TUPE during a business transfer.
- Service provision change: This is when a service provided for the company moves from one company to another:
- a service provided in-house is awarded to a contractor, such as facilities or cleaning;
- a contract ends and is given to a new contractor; or
- a contract ends and the work is moved in-house
What are the responsibilities of the TUPE outgoing employer and incoming employer?
The responsibility and commitments to the employees sit largely with the Incoming Employer as they will now be responsible for the employees as soon as the transfer takes place.
The Outgoing Employer has a responsibility to send the Incoming Employer the ‘Employee Liability Information’ about all the employees, but if the information is inexplicit, especially around contractual and non-contractual benefits, the duty is on the Incoming Employer to get the information across.
How much notice (Consultation period) does the Outgoing Employer have to give before the TUPE transfer?
There is no definitive answer to this one. Unlike redundancy, there is no specified minimum period of consultation prior to the transfer.
Although there is no correlation between TUPE regulations and redundancy requirements, being mindful of the minimum consultation required for redundancies of a comparable number of affected employees would be wise.
TUPE regulations states that employers must provide the required information (information about the transfer and the effect on the employees) to employee representatives (or individually if less than 10) “long enough before a relevant transfer to enable the employer of any affected employees to consult the appropriate representatives”.
What happens to an employee’s Terms and Conditions during TUPE transfers?
The employee’s terms and conditions should be protected and consequently will be unaltered by the transfer.
What pension rights does an employee have on transferring employment as part of TUPE?
Most pension rights under occupational pension schemes are omitted from TUPE but those under a personal pension scheme do transfer.
As an Incoming Employer, if you inherit a personal pension scheme you may need to continue the level of contributions made by the Outgoing Employer.
Incoming Employers are not obliged to offer exact pension provisions but may need to provide a minimum level of pension provision for the transferring employees.
Where can I get help with TUPE transfers?
TUPE Transfer regulations are complex and quite ambiguous in some areas of legislation, and therefore we would always recommend seeking specialist support and guidance if you going to be involved with a transfer.