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TUPE Consultations

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12 May 2021

The Transfer of Undertakings (Protection of Employment) regulations (TUPE) process is a long and complicated one. But it's also essential when transferring a business or a service provision.

According to the regulations on TUPE, you must consult with employee or union representatives before the transfer takes place.

The TUPE consultation process aims to inform your staff of the transfer and notify them of how said it’ll affect their employment.

As an important element of the TUPE procedure, the implications of not adhering to the TUPE regulations can be extremely harmful to an organisation.

For employers currently moving all or some parts of your business, you can contact Croner today to guide you through every step of the TUPE process. With our help, you’ll navigate the common pitfalls employers face during the process and avoid hefty penalties.  Call us now on 01455 858 132.

Otherwise, continue reading our TUPE consultation focused piece. In it, we’ll explore the process of carrying out these consultations and highlight your legal obligations at this stage of the proceeding.

What is TUPE consultation?

It’s an important step in the TUPE process during which you must consult with your employees or their union representatives.

At the consultation, you’ll inform your staff of the transfer and and pass on any relevant information they’ll need to be aware of.

There are a variety of considerations involved before a business or service changes over. One of which is the TUPE consultation meeting.

After establishing that TUPE regulations apply and identifying the employees affected by it, you’ll need to inform and consult with the transferring employees.

You’re required to conduct a collective consultation for TUPE with staff representatives. This is where you speak to the representatives on behalf of all affected employees.

Although, if your business has fewer than 10 employees, you can inform and consult with them about the transfer directly and individually.

If you recognise a trade union then you’ll inform their representative, if not, you’ll consult with an employee representative.

For organisations without a trade union, you’ll inform and consult with employee representatives and where there’s no representative, employees can elect one. When elected, the employee representative will have the same rights as a trade union representative.

What is the TUPE consultation period?

The TUPE consultation period is the point in which you must inform and consult with your staff (or the appropriate employee representatives).

At this stage of the process, you’ll inform them in writing:

  • Of the transfer, when it’s due to happen and why.
  • How the said transfer will affect them (socially, economically and legally).
  • If there’s be any reorganisation within the company.
  • About the number of agency workings you use and what types of work they do.

You’ll also inform them of any measures that you imagine the incoming employer will put in place. This can include changes to pay, working hours, job description etc.

The regulation states that you must consult with employees or their representatives about anything that relates to the transfer that would affect them.

Failure to consult TUPE or comply with any of its requirements can result in you paying compensation to each employee affected by the transfer. Payment can be up to 13 week’s pay for each staff member.

It’s good business practice during the TUPE consultation to document every stage of communication with employees. With this, you can show that you met your obligations if you’re asked to be an employment tribunal.

Is there is a minimum TUPE consultation period for TUPE?

Unlike the requirements for collective redundancy, there’s no TUPE consultation timeline in which you must inform/consult your staff.

While the regulation doesn’t highlight a minimum TUPE consultation period, it does require you to inform/consult with your employees (or representatives) before the transfer to allow them to raise any concerns with their appointed representative.

Under section 13(2) of the TUPE regulations, the TUPE consultation period length should be as long as necessary before the transfer. This is to enable all affected employees time to consult with their appropriate representatives.

So, how long is the TUPE consultation period? A simple answer is it’ll depend on your specific circumstances.  

You’ll need to invite all employees or their representatives to a TUPE consultation meeting where you’ll discuss any proposed measures.

Consider our template letter for inviting staff to the meeting.

During the entire process, you can expect your staff to ask a variety of questions related to the proceedings. Potential questions include:

  • What happens to my pay?
  • What if I don’t want to transfer?
  • Can I be dismissed because of a transfer?
  • How much notice am I entitled to?
  • What happens to my terms and conditions?
  • What happens to my pension?
  • Can the incoming employer change my terms and conditions?
  • Can an incoming employer start a redundancy procedure before the business transfers?

To avoid delays and confusion during the process, its best to familiarise yourself with the answers to these questions as well as any others specific to your situation.

Expert support

For additional support with the TUPE process or any other employment law issue, speak to a Croner expert on 01455 858 132.

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