TUPE and Obligations to Consult
1(a) TUPE stands for the “Transfer of Undertakings (Protection of Employment) Regulations 2006” as amended by the “Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014”. The purpose of the Regulations is to protect employment rights when employees transfer from one business (“the Transferor”) to another (“the transferee”). Some of the protection it gives are length of service, salary, hours of work and any collective agreements. It could include practices and policies but not established pension schemes.
(b) The Transferor, there can be more than one transferor because staff from two companies could be transferring to a new company being set up for a particular purpose.
(c) A Transferor has obligations, these are:
To produce a spreadsheet of employee data called (ELI) about the employees who are being transferred. The information includes age and identity of the employees in question, their employment particulars, their disciplinary and grievance records, details of any collective agreements, and details of any outstanding claims against the outgoing employer. This information must be provided not less than 28 days before the proposed transfer date.
The information Transferor needs to provide:
Mobile Tel numbers
Home Tel numbers
Personal email addresses
Type of contract – permanent, casual hourly paid, fixed term or temporary
Bonus Scheme payment in last financial year
Weekly Contractual hours
Hourly rate if casual staff
Bank Holiday enhanced rate
Average overtime worked and total overtime earnings
Annual Leave and days/ hours taken in current leave year
Lieu days accrued
Date of continuous service including predecessor organisationa
Date of Birth
Pension Type – and employee/er contributions
Sickness days/ hours in last 12 months
Disciplinary record – in last two years
Tribunal Claims resolved
Tribunal Claims pending
Collective Agreements including pay deals and working time opt outs
Copies of Contracts
Redundancy package especially if enhanced
(d) The more information you can provide as a Transferor, the more likely there will be a successful transition and business continuity. This information is confidential. It should only be used for the purposes of negotiating the transfer or purchase price of the business, and not used for any other purpose.
- The Transferor compiles the list of staff being transferred but this can be challenged. The Transferor can omit staff if only part of their business is being transferred and they wish to retail skills and knowledge. Usually the 50/50 rule applies, which is, if a member of staff is engaged on the work being transferred for 50% of their time or more they should be on the list. A member of staff refusing to be transferred is deemed to have resigned.
- All staff employed immediately prior to the transfer date must be on the list including staff on fixed term contracts unless that contract was due to end by reason of the fixed term as planned, the day before the transfer date.
- The Transferor should then write to the Transferee asking for what is called a “measures” letter otherwise without it the Transferor cannot proceed to consult with their staff about the transfer.
- It is the Transferor that is responsible for consultation not the Transferee.
- What should a Transferee say in the “measures” letter?
(a) The word “measures” has a broad meaning. It can cover anything except the fact of the transfer.
(b) The measures letter could include:
- a restructure
- a change to terms and conditions
- a new bonus scheme
- a new pension scheme
- a number of redundancies
- a new pay day
- a refurbishment
- a relocation of staff
- a closure of depots or offices
- a change to opening hours
- a number of new jobs
- an expansion programme
- a training programme for transferred staff
- a plan to introduce new products and services
- a pay increase
- a programme of harmonising pay, terms and condition
(c) A Transferee could also use the “measures” letter to send a positive message and make reassuring statements for example – all staff will be kept on, terms and conditions will be retained and the company is going to take on extra staff and there will be more hours for staff. It is an opportunity to engage with transferred staff. The Transferor is likely to send the “measures” letter to all the staff affected and their trade unions.
(d) A Transferee should ask to be involved in the consultation process and it is best for the Transferee to ask to be invited to the consultation meetings either with the transferor’s trade union or elected representatives. Again this is an opportunity to engage with staff who will transfer to the Transferee
2 (a) Transferors armed with the “measures” letter have a duty to consult with either trade union representatives (or employee representatives where trade unions don’t exist)
(b) The issues in the “measures” letter need not be definite just probabilities. However things like a business plan will be commercially sensitive and need not be disclosed.
(c) This type of consultation may develop in to negotiation between staff and the Transferor as staff may not welcome the transfer and they may seek to halt the transfer. This is why it is wise to have the Transferee present at these meetings as they can clarify issues and answer questions. Although in law there is no requirement for the Transferor to consult about the fact the transfer is going ahead.
(d) At the consultation meeting the Transferor must keep control and have a clear agenda.
(e) Set out a timescale for consultation. It can be completed in 2 – 4 weeks.
(f) Remember the fundamental document is the “measures” document/ letter from the transferee.
For more advice contact The Peacock HR Consultancy
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