When businesses undergo restructuring, mergers, acquisitions, bringing service in-house or outsourcing, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) – may take effect to transfer employees and protect their rights.
Interpreting and applying TUPE correctly can be complex and, if mishandled, can lead to significant legal and financial exposure for employers. Our specialist solicitors will guide you through your obligations and the TUPE transfer process to ensure full compliance. With the right legal guidance, organisations can navigate the intricacies of TUPE compliance confidently, ensuring smooth transitions and legal peace of mind.
TUPE – the Transfer of Undertakings (Protection of Employment) Regulations 2006 – is a set of regulations in the UK designed to protect employees’ rights when the business or service they work for transfers to a new employer. Whether you’re taking over a business, bringing in-house, outsourcing a function, or merging operations, TUPE may apply.
A TUPE transfer refers to either a ‘business transfer’ (whole or part) or ‘service provision change’, collectively defined as a ‘relevant transfer’. However, TUPE does not apply to every business transfer or service provision change; there are specific qualifying conditions that must be met for a transfer to be considered ‘relevant’.
It does not apply to asset-only transfers where no employees are involved and no change of employer. Employment claims against businesses arise from a failure to comply with the strict requirements of TUPE legislation, this can disrupt business and lead to compensation awards. Our role is to ensure that doesn’t happen.
At Warners Solicitors, our TUPE lawyers have extensive experience of helping employers’ across all sectors navigate the complexities of TUPE. We provide proactive, commercially aware guidance that helps you to comply with your legal obligations and minimise risk.
Our team of dedicated TUPE specialist solicitors offers hands-on support at every stage of the transfer process. We advise on:
We will assess and advise you whether the proposed business transfer or service provision change falls under TUPE, giving you clarity from the outset and explanation of your obligations.
If you’re acquiring a business, we can assist you to conduct thorough due diligence to uncover liabilities, employee entitlements, advise on risks and issues and appropriate warranties and indemnities.
We advise both transferors and transferees on their statutory obligations to inform and consult affected staff or their representatives, a critical and challenging area of TUPE compliance.
We help you handle any dismissals or changes to terms and conditions with care and in line with TUPE restrictions to avoid claims for unfair dismissal or breach of contract.
From initial scoping to final implementation, our TUPE transfer solicitors ensure your business is protected, your obligations are met, and employee transitions are handled smoothly. We will work closely with your internal teams and professional advisers to ensure a smooth transition.
Whether you’re preparing for a sale, merger, outsourcing arrangement or insourcing a service, don’t leave your business exposed. It is essential to seek legal advice as early as possible. Contact our TUPE solicitors to ensure compliance. Our experienced TUPE solicitors in Kent are ready to help.
Under TUPE, the employment contracts of transferring employees, including all rights and obligations, must be preserved by the incoming employer, and both the outgoing and incoming employers are legally obligated to follow the correct procedures, including consulting with affected employees and managing any dismissals or redundancies appropriately.
If TUPE is found to apply to your transaction there are a number of potential legal obligations you may be bound by:
If you are transferring employees to a new employer, you should:
Provide the new employer with key information about your employees – this is known as employee liability information; and inform and consult with appropriately elected employee representatives about the transfer and any potential changes to their employment.
If employees are transferring to you from another business or service provider you will need to:
The timing of the consultation is important. Whilst there is no specific timeframe mandated by law, it must take place long enough before a relevant transfer to allow for meaningful dialogue to take place.
The new employer is prohibited from making any changes to the terms and conditions of employment of the transferring employees if the sole or principal reason for the variation is the TUPE transfer. There are some limited exceptions where:
(a) The employment contract already allows for a specific change to be made; or
(b) The employer and employee agree the change in circumstances where the sole or principal reason for the variation is an economic, technical or organisational (ETO) reason. However, because ETO reasons require a change in the number or functions of the workforce, or change in location, it is difficult to change terms.
Failure to comply can result in legal action, including claims for unfair dismissal, discrimination, breach of contract and other breaches of employee rights including an award for a failure to inform and consult of up to 13 weeks’ gross pay for each affected employee.
You should inform the transferred employees in writing about the change of employer and confirm that their length of service and contractual rights remain the same.
