Does TUPE apply?
At the outset, the business should determine whether TUPE applies. Wherever possible this should be agreed with the other party before the business transfers or the contract moves to a different service provider. The risk arises when the parties cannot agree.
Failing to comply with consultation obligations
This is an issue where there are 10 or more employees in a non-unionised business/organisation, where there are no existing employee representatives who have been elected for the purpose of the transfer. In such instances the business/ organisation must arrange for the election of employee representatives – the regulations governing these elections, as well as the functions and responsibilities of those representatives are detailed, and financial penalties will be incurred if the regulations are breached. Both the transferor and the transferee may be liable for these penalties.
Identifying those who are to transfer and those who are to remain
This is an exercise that should be dealt with at an early stage of the planning process and should be able to withstand close scrutiny. Historically, this is an area that has given rise to a substantial raft of case law especially in specific problem areas, for example, where there are employees absent from the business due to long-term sick leave or furlough leave prior to the transfer taking place.
Dealing with the restructuring of the workforce post transfer
This is a risk area for both the transferor and the transferee. Restructuring which results in changes in headcount needs to be carefully handled in the light of the added protections offered by the TUPE regulations.
Ensuring pension rights are established
This is a particular issue for the transferee, especially when on-boarding staff who have previously enjoyed generous pension schemes with the transferor – a key example of this being on the award of a contract by a public sector organisation.
Changing terms and conditions post transfer
Identifying when change is permitted and the mechanism for change in terms and conditions of employment.
Relocating staff post transfer
This is now allowed but there are processes to be followed which can prove costly if breached.
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This information is for general guidance only and does not constitute definite advice.