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If you sell all or part of your business, merge with another organisation, or bring an outsourced service in-house, then you may find that TUPE regulations apply.
Planning, communication, and consultation are essential to a successful TUPE process. At Reality HR, we specialise in providing comprehensive support to businesses undergoing a TUPE transfer, ensuring compliance, minimising risks, and facilitating seamless transitions for both employers and employees. Our specialist consultants will work closely with you throughout, ensuring staff are treated fairly and that compliance is achieved every step of the way.
The TUPE (Transfer of Undertakings Protection of Employment) Regulations 2007 exist to protect employees during mergers and acquisitions. Whether you are acquiring a business, selling, or undergoing a merger, understanding and adhering to TUPE is crucial. It involves the transfer of employees’ contracts, rights, and obligations from the old employer to the new employer, safeguarding their employment terms.
At Reality HR, our consultants can work with you to guide you through the complexities of TUPE transfers.
Our TUPE HR services offer assistance with every stage of the employee transfer process, including:
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Our HR Consultants can provide you with a complete TUPE management service, giving you peace of mind that your people and business are protected. We support businesses through employee transfers during mergers, acquisitions, or service provision changes. These services ensure legal compliance, manage effective employee communication, and help minimise disruption by providing expert guidance on consultation processes, contract obligations, and risk mitigation.
Our experienced HR consultants work closely with your team to understand the scope of the transfer. We provide detailed guidance on your legal obligations and help plan the process to ensure a smooth transition.
Clear and timely communication is essential in a TUPE transfer. We assist in developing communication strategies and materials to inform and reassure your employees about the changes, ensuring all communication complies with legal requirements.
We provide expert guidance and support to navigate employee redundancies during the TUPE process, ensuring compliance and sensitivity throughout. Our experienced team can support you with planning and managing each stage of the TUPE redundancy process, ensuring it is fair and clearly communicated to your staff.
We help you gather and analyse all necessary employee information, ensuring that you have a comprehensive understanding of the workforce being transferred. Our team assists with preparing essential documentation to ensure transparency and legal compliance.
Post-transfer, integrating the workforce is a critical step. We offer training for managers and HR teams on managing change, understanding new policies, and supporting employees during the transition. Our goal is to help you foster a cohesive and motivated workforce, minimising disruption to your operations.
Whether TUPE applies to your situation will depend on the facts of the case. We can talk you through the specifics and make sure you understand your obligations as an employer.
TUPE applies when an employee is transferred from one company to another in the following circumstances:
TUPE legislation does not apply in the following situations:
The TUPE process involves several key steps to ensure the smooth transfer of employees’ rights and obligations from one employer to another. These steps are crucial for a legally compliant and smooth transition, ensuring that employees’ rights are protected throughout the process.
Determine whether the situation qualifies as a TUPE transfer. This typically involves the sale of a business, outsourcing, insourcing, or a service provision change.
This includes employees who are assigned to the part of the business being transferred.
The outgoing employer must provide the incoming employer with specific details about the transferring employees. This is known as Employee Liability Information (ELI)This information includes terms of employment, disciplinary records, grievances, and any claims the employees have against the employer. This must be done at least 28 days before the transfer.
The employers must inform and consult with affected employees and their representatives (such as trade unions or employee representatives). They must provide information about the transfer, including when it will take place, the reasons for it, and the implications for employees.
Employees may object to the transfer and, in some cases, may choose not to transfer, which can have legal implications.
Develop a plan for integrating the transferred employees into the new business structure. This may include training, orientation, and aligning policies and procedures.
Complete the legal and administrative aspects of the transfer. Ensure that all employment contracts and relevant documentation are updated to reflect the change in employer.
After the transfer, continue to support the transferred employees and ensure ongoing compliance with TUPE regulations. This includes dealing with any issues that arise and ensuring the preservation of employees’ rights.
In some cases, after the TUPE process is complete, you may find that some roles are duplicated or no longer required and make the difficult decision to make redundancies.
Our experienced team can support you with planning and managing each stage of the TUPE redundancy process, ensuring it is fair and clearly communicated to your staff. We will help you to avoid any legal consequences, guiding you through the correct selection, consultation and appeals process.
With experience in TUPE processes, we can guide you through the requirements and help ensure you understand your responsibilities as an employer.
Tailored Solutions: We understand that every business is unique. Our solutions are customised to meet the specific needs and challenges of your organisation.
Comprehensive Support: From initial consultation to post-transfer integration, we offer end-to-end services to ensure a smooth transition.
Employee Focused: We prioritise clear communication and employee well-being, helping to maintain morale and productivity during transitions.
If your business is facing a TUPE transfer, don’t navigate it alone. Contact Reality HR today for expert guidance and support. Let us help you manage the process efficiently and effectively, ensuring a successful outcome for all parties involved.
TUPE legislation doesn’t specify how much notice you must give employees, but you must engage in a consultation process with them (individually or collectively depending on the size of the business).
If an employee is unhappy to work for the new employer, they can object to a transfer, either by informing you or the new employer. This must happen before the transfer takes place.
As the transfer is effectively automatic, the impact of an objection is that their employment will end at the transfer date. They would not then receive redundancy payment.
All employee contracts, including any pay and contractual benefit entitlements that are carried over to the incoming organisation, must remain the same as it’s considered a breach of contract by the new employer to make any changes.
TUPE applies to all employees contracted to your business, including those still on probation.
If you fail to consult with employees or union representatives, or you don’t give employees reasonable notice of your intention to transfer their employment contracts to a new employer, you could be legally liable to pay each employee up to 13 weeks’ pay as compensation. settlement agreement.
Under TUPE regulations, employees are protected from dismissal solely because of the transfer itself. Redundancies may still occur if there are genuine Economic, Technical, or Organisational (ETO) reasons requiring workplace changes.
Employees transferred under TUPE maintain their continuous service, meaning redundancy payment calculations include their time with the previous employer. The new employer assumes all redundancy liabilities.
Employers must demonstrate fair selection criteria and follow proper consultation procedures when considering redundancies in a TUPE situation to avoid unfair dismissal claims.
When employees transfer under TUPE, they retain their existing terms and conditions of employment. For pay rises:
Contractual pay rises explicitly mentioned in employment contracts or collective agreements must be honoured by the new employer.
Discretionary pay rises that weren't guaranteed before the transfer aren't automatically protected.
Following a transfer, employers cannot immediately harmonise terms solely due to the transfer, but may negotiate changes after a reasonable period if there are ETO reasons or employee agreement.
Economic, Technical, or Organisational (ETO) reasons may allow employers to make changes following a transfer:
Economic reasons: Related to profitability or market position, such as genuine needs to reduce costs.
Technical reasons: Changes to equipment or processes, such as implementing new technology.
Organisational reasons: Structural changes, such as departmental restructuring for greater efficiency.
For an ETO reason to be valid, it must entail changes in the workforce (numbers or functions), be the reason for the dismissal or change, and not be directly connected to the transfer itself.
TUPE primarily protects employees rather than genuinely self-employed contractors. However:
TUPE may apply to "disguised employees" – individuals with contractor status but working under conditions suggesting employment.
For service provision changes, contractors might be protected if they form part of an "organised grouping of employees" whose principal purpose is carrying out the activities concerned.
Courts examine the reality of the working relationship rather than just contractual labels, considering factors like control, integration, substitution rights, and financial risk.
Agency workers typically have a more complex position under TUPE:
They are usually not considered employees of the client company, but of the agency that placed them, so they generally don't automatically transfer.
Agency workers might be protected if they are actually employees of the client company (regardless of contract wording) or if they are employees of the agency and the agency's service provision is being transferred.
The transferor must provide information about any agency workers they use to the transferee.
The Agency Workers Regulations 2010 provide separate protections distinct from TUPE protections.
Holiday entitlements are fully protected under TUPE regulations:
All accrued holiday entitlements transfer to the new employer, including unused holiday days and any holiday carried over.
Enhanced holiday entitlements above the statutory minimum must be honoured by the new employer.
The new employer cannot reduce holiday entitlement solely because of the transfer, though they may seek to harmonise policies after a reasonable period if there are legitimate ETO reasons and proper consultation.
The "50 rule" refers to collective consultation requirements for redundancies following a transfer:
When proposing 50 or more redundancies at one establishment within a 90-day period, consultation must begin at least 45 days before the first dismissal.
For 20-49 employees, the consultation period is at least 30 days.
These requirements apply alongside standard TUPE consultation about the transfer itself.
Employers must consult with appropriate representatives and provide specific information about the proposed redundancies.
Failure to comply can result in a protective award of up to 90 days' pay for each affected employee.
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