The Transfer of Undertakings Protection of Employment (TUPE) is a complex and technical process aimed at protecting employees. The regulation came into place in 2006 and applies when you’re transferring a business or service provision.
If you’re currently going through either of these transfers, then you’ll no doubt be aware of the various elements you’ll need to consider. While we’ve covered various aspects of the process in previous articles, this TUPE transfer checklist serves as a guide to ensure you’ve covered all steps involved in the process.
Although there’s no official ACAS TUPE checklist, they do provide a general guide on handling TUPE transfers that offers a step-by-step breakdown of the process as well as advice on the best practice.
Based on ACAS’s guide, we’ve put together a TUPE checklist for the transferor. The document highlights all aspects of the process that you’ll need to consider or complete before making the transfer is official.
TUPE checklist for employers
The specific steps involved in the TUPE process will vary depending on a variety of circumstances. Are you transferring the whole business? Is it just certain service provisions? Are you the incoming or outgoing employer?
Whatever the case may be, you’re required to consider the four key elements in the process. They include:
- Identifying affected employees.
- Gathering information and consultation.
- Employee liability information (and due diligence).
- Terms and conditions.
Our TUPE checklist above breaks down each task required in the sections above and lists the elements required. This checklist aims to assist in ensuring you comply with your obligations under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).
Identify all affected employees
This is the first and often the most difficult part of the process. It involves identifying the staff members to transfer to the incoming employer.
The decision will depend on their roles before the transfer. You’ll need to consider your staff on short-term absences as well as those on fixed contracts. It’s worth remembering at this point that agency workers aren’t transferable in this process.
If you’re selling the whole business, then all employee will transfer. If you’re transferring a service provision, you’ll need to consider the employees working within that part of the business.
Other considerations at this stage include:
- Informing and consulting with employees about the transfer.
- Engaging with trade union officials or elected representatives.
- If no appropriate representative is in place, arrange for the election of an employee representative.
- Offer employee representatives training on how to carry out their roles and provide facilities to the representative.
- Using your existing communication channels, provide information directly to employees (or through their representatives).
- Provide feedback channels to answer questions and address any employee concerns.
Gathering information and consultation
After establishing the employees affected by TUPE, you’ll need to pass on certain information to the incoming employers and the transferring employees.
You’ll provide employees (or their representative) with information relating to:
- The fact that the transfer is taking place.
- The proposed (or actual) date of the transfer.
- The reason for the transfer.
- The implications (legal, economic and social) of the transfer to affected employees.
- Any proposed measures connected with the transfer that’ll affect the employees. If no measures in place, you must also make that clear.
You’ll consult with union representatives or employee representative where there’s no union representation. For establishments with less than ten employees, you can consult with employees directly where there’s no recognised independent trade union.
While there’s no time limit for providing this information, you should endeavour to complete it in ‘sufficient’ time for a consultation to take place.
Failure to comply with this obligation can result in compensation for each employee of up to a maximum of 13 weeks’ pay.
Employee liability and due diligence
As well as the information you’ll provide to your employees, you’re also obligated to provide the incoming employers with certain information.
Regardless of if TUPE applies, any organisation buying a business or bidding for a contract to provide a service must undertake due diligence. It allows for accurate budget planning and determining the terms and conditions of the transferring staff.
You must provide the buyer with information relating to the rights and obligations of the transferring employees in writing and before 28 days before the date of the transfer.
Details to include at this stage include:
- The transferring employees’ identity and age.
- The particulars of their employment contract (the terms and conditions of their employment including pay, working hours, holiday entitlements, length of service etc.)
- Any relevant collective agreements.
- Information relating to any formal disciplinary action taken against any of the transferring employees in the last two years.
- Information relating to any formal grievance action taken against any of the transferring employees in the last two years.
- Information relating to any legal action brought against you by any of the transferring employees in the last two years.
- Information relating to any potential legal action you believe a transferring employee might bring forward.
Failure to supply this information or for providing incorrect information can result in compensation by a tribunal. The tribunal will calculate payment based on a minimum award of £500 for each employee whose information was incorrect or not provided at all.
Terms and conditions (Harmonisation)
As part of the employee liability information, you should also send out a comprehensive list of the employment terms and conditions of all transferring employees to the incoming employer.
It should include information relating to the terms and conditions that can be transferred during the process.
To avoid overlooking any terms, consider the following questions:
- Have you sent copies of relevant company policies including those in your employee handbook?
- Have you included any recently agreed-upon changes to the terms and conditions that you haven’t added to the employment contract?
- Are there any orally agreed-upon terms and conditions that the incoming employer will need to know about?
- Do you have any terms and conditions that aren’t in writing but established over time by customs and practices?
- Do the transferring staff have any trade unions recognised for bargaining purposes? They can provide details on any collective agreements, recognition agreements, consultation agreements, etc.
- Has any of the transferring employees agreed to a variation of the standard terms and conditions? This includes flexible working options, reasonable adjustments, etc.
For additional support with the TUPE process, or any other employment law issue, speak to a Croner expert on 0800 880 7298.
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