Here are our top 10 tips for the Transferor – this is the organisation that is giving to another organisation. The transferor is usually the seller of the business to another or a client seeking to outsource a service.
1. Be prepared
In any TUPE situation there should be a commercial agreement to record the transaction. These commercial agreements include warranties (promises or assurance) and indemnities (protection against financial liabilities) on several issues, including employment. It is therefore important to carry out your own due diligence process in preparation for the pre-transfer communications.
From an employment position, you will need to identify those employees who will be impacted by the transfer; this does not just include those that are transferring.
Work out who will be involved in the consultation process and who will be the key point of contact for that process.
2. Map out timescales
Consider how many employees are impacted by the transfer and how long it will take to consult with those employees. Depending on the size of your organisation, this will involve collective consultation and individual consultations using either trade union or employee representatives.
Allow time for any potential issues that may arise during the process as each individual will react differently to change.
3. Ensure the transferee is provided with all employee liability information
Review each affected employee’s terms and conditions of employment and personnel files. Identify any ongoing procedures, issues or Tribunal claims.
Create a document that provides all information on each employee being transferred. This should include:
- Terms and conditions of employment;
- Ongoing procedures and claims; and
- Any information regarding right to work checks, sponsored visas and working arrangements.
4. Liaise with the transferee to find out if they envisage how those employees transferring will be affected
Keep open communication with the transferee so you are aware of any changes they envisage; for example, the transferee may have different working hours or hybrid working. Whilst the transferee will need to consult with those employees transferring, you will still need to ensure you are informing affected employees of all or any changes envisaged.
5. Identify any unions or if you require employee representatives
If your organisation has 10 or more employees and there are no recognised trade unions, you will need to arrange elections for the affected employees to vote for employee representatives. These are the people you then consult with.
If you have fewer than 10 employees you can consult with employees individually, though you can still arrange elections for the affected employees to vote for representatives.
6. Inform and consult all affected employees of the transfer
You are under an obligation to inform affected employees of the transfer, providing information including the date of transfer, the reason for the transfer, their rights and any envisaged changes.
You will hold collective and individual consultations with affected employees. Prepare for any responses or suggestions from the representatives or the affected employees.
The consultation process must be meaningful, reasonable and genuine. An employee can bring a claim in the Tribunal if an employer fails to inform and consult.
7. Be open and transparent – think about communication
The consultation process must be open, transparent and clear. Those communicating with affected employees will need to have a clear understanding of the transfer and the implications. Employees will want to understand the rationale behind the changes and how they will be impacted by any change. Affected employees may feel uncertain of the chances and so it is important not to dodge any issues or minimise what is happening.
8. Update all employees at each stage of the process
Keep employees updated and use an appropriate communication channel with all updates or changes. You may wish to prepare a Frequently Asked Questions (FAQ) document that is updated at each stage and responds to commonly asked questions. Inform employees of who they can contact throughout the process.
9. Write to transferring employees
At the conclusion of the consultation process write to the transferring employees to formally confirm the details of their new employment.
10. Be ready for appeals or objections
Employees may object to the transfer. If an employee does object to the transfer they will need to do so in writing and should they do so, their employment will terminate on the date of the transfer.
Need more information?
For more information on TUPE or if you require any assistance, you can contact our Employment Client Services team on employmentinfo@daslaw.co.uk or call on 0344 2640102.