Tupe tips for employers

Selling a business as an employer comes with its own set of legislation regarding the protection of your staff. This is known as Transfer of Undertakings Protection of Employment (or TUPE) law for short. 

It is important to follow the correct process when it comes to TUPE, as failure to do so could land you in a costly legal fracas that could result in not only financial, but reputational damages, to boot.

Get advice from a Croner Employment Law professional, specifically tailored to your business's circumstances and needs, today. Call today on 0808 501 6651.

Tips for Transferors

When selling your business, you should be sure to take precautions in advance, in order to ensure a legally compliant transfer. Below are a few tips to help ensure that the TUPE process goes as smoothly as possible.

Plan ahead and map out the estimated timescales

The phrase “fail to plan, plan to fail” applies here. The TUPE process can seem convoluted and lengthy but some forward planning can expedite matters and ensure that you don’t hit any roadblocks with potential buyers. 

Ensure your commercial agreement includes warranties and indemnities on issues like employment. This includes identifying all employees who will be impacted by the transfer, not just those who are transferring and involving all the necessary personnel in the consultation process and establishing a key point of contact.

Consider the timeframe of the consultation process, this includes both collective and individual processes, which may require the presence of employee and trade union representatives. Be sure to account for how individuals will react to the news of the change. Some transferring employees could be totally accepting of the situation whilst others might feel anxious and have questions. 

Provide employee liability information to affected employees

You should review your employees contracts and documentation to determine the terms and conditions of employment. You will be required to provide information to the transferee including the identity, age and the particulars of their employment.  You should also include any information on any disciplinary or grievances or tribunal cases within the previous two years.  You should create documentation for all of the employees being transferred including all of the above..

Communicate with the Transferee and liaise with them to discuss transferring employees 

Keep an open line of communication with the transferee, this will help ensure there are no hidden surprises. The transferee is required to make you aware of any “measures” which are essentially changes to the employees’ terms and conditions that they are proposing post transfer. For example, the transferee might operate different business hours which will have knock on effect for employees that are transferring. Ensure that you are keeping all involved informed. 

Ensure unions and employee representatives are considered

In Great Britain you can consult directly with your employees rather than having to elect employee representatives when the company has fewer than 50 employees in total or a company of any size where a transfer of fewer than ten employees is proposed.

Hold consultations with affected employees of TUPE transfers 

You are legally obligated to inform affected employees of the transfer and provide information and consultation of the details including, the date of the transfer, reasoning as well as reiterating their rights. You should also communicate any envisioned changes during the process as soon as you are aware of them. 

During the consultation process you should prepare for any and all responses from employees including suggestions. You must maintain a genuine and reasonable consultation process at all times as failure to do so could result in employees seeking legal advice and even having your business taken to an employment tribunal.

Practice open and transparent communication

This is key to maintaining a smooth TUPE business transfer process. Communications to affected employees must be clear and honest. Avoid minimising potential issues as this could cause tension and distrust. 

Alongside the openness of communication, keeping employees updated at each step of the process can help ensure that you avoid accusations of withholding information or dishonesty by omission. Providing a record of FAQs and keeping these regularly updated can help ensure that everyone is on the same page. 

Put things in writing and be ready for objections and appeals

At the finalisation of TUPE proceedings, be sure to write to transferring employees, to confirm the details of their new employment, this can include things entailing to terms and conditions of their new contract etc.

Be prepared for employees objecting to the transfer and potentially refusing to transfer.  Always attempt to address any concerns an employee may have and ensure you are keeping them informed.  If an employee refuses to transfer and you do not have alternative work for them then the employees should object in writing and if this is the case then their employment will terminate on the day of transfer.

Get expert advice from Croner

TUPE can be a particularly challenging time for employers as well as employees. To ensure peace-of-mind talk to the Employment Law Experts today and ensure compliance with the latest legislation.

Call today on 0808 501 6651.