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Employment Law for Businesses
TUPE Advice for Businesses
Susie Al-Qassab
Partner
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Homa Wilson
Partner
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Suppose you are selling or taking over a business or changing who provides you with a particular service. In that case, you must understand what ‘TUPE’ (the Transfer of Undertakings (Protection of Employment) Regulations 2006) is and how it will affect your business because there are significant penalties for non-compliance.
TUPE obligations exist to protect employees’ rights when there is a ‘relevant transfer’ within the regulations and can be highly complex. You should seek legal advice at the early stages of a transfer to avoid the risk of costly unfair dismissal claims, Employment Tribunal proceedings and awards for failure to inform and consult under TUPE.
Our team of specialist employment solicitors have a wealth of experience advising clients on complying with TUPE regulations. We provide a bespoke service which meets the specific needs of your business or organisation. We’re here to help employers with:
Information and consultation requirements of TUPE
Legal advice on redundancies in advance of or following a transfer
Unfair dismissal claims arising from TUPE
TUPE law training
Drafting letters to employees about a transfer of their employment
Harmonisation of employment contracts
Drafting TUPE provisions in outsourcing agreements
"AT ALL TIMES YOU HAVE ALWAYS GIVEN ME SOUND ADVICE, OF WHICH I AM GRATEFUL."
Why choose Hodge Jones & Allen Solicitors?
Our experienced employment lawyers can assess whether TUPE applies to your situation. If it does, we’ll advise you on your obligations to minimise your exposure to claims and sanctions.
We can assist parties with pre-transfer employee due-diligence and information gathering. If your query is related to a service provision change, we can help you draft contracts and TUPE provisions in outsourcing agreements. We can also advise you if any employees raise Employment Tribunal claims regarding a TUPE transfer.
If you’re the seller/existing service provider, we’ll provide tailored advice on:
Informing and consulting concerned parties
Potential redundancies
Drafting letters to reps and employees
Commercial negotiations
Obtaining appropriate warranties and indemnities from the buyer/new service provider.
We can help you ensure that any TUPE transfer your business is involved in is compliant with the regulations. This should mean the avoidance of costly Employment Tribunal claims. We can also advise you on the best way of achieving your commercial objectives and help with the negotiation of warranties and indemnities to better protect your business.
"THANK YOU SO MUCH FOR ALL YOUR HELP. THANK YOU FOR STAYING SO CALM AND EXPLAINING EVERYTHING FULLY."
If you do have claims brought against you, we will help you to defend these claims at Tribunal and, if appropriate, negotiate a suitable settlement.
We can also help your business get ready for sale, or integrate transferring employees post-sale to prepare contracts and policies etc.
Our competitive hourly rates for our work make budgeting, and clear pricing information makes it easy for you to manage your budgets and keep on top of your spending.
Featured cases
Client achieves commercial resolution after being advised
We advised a sub-contractor on their TUPE obligations when their contract was taken back in-house on short notice by the main contractor. We specifically dealt with employees with a dispute about whether they were assigned to the service brought back in-house. We helped our client achieve a commercial resolution.
Successfully defended Director’s legal claims
We advised a London-based SME in a Directorships dispute involving allegations from one of the co-founders of unfair dismissal, unpaid shares and a contested TUPE transfer. We successfully defended the Director’s legal claims and resolved the dispute.
Advised well-known retailed on franchise store acquisitions and other dealings
We advised a well-known retailer on the employment law aspects of a number of franchise store acquisitions, including dealing with due diligence and TUPE consultation requirements.
What are the sanctions for breaching TUPE regulations?
Any dismissals related to a TUPE transfer will be automatically unfair (though only employees with more than 2 years’ service can claim). If information and consultation obligations are breached an Employment Tribunal can award up to 13 weeks’ actual pay for each affected employee.
There are also potential sanctions for failing to provide information on transferring employees following the regulations.
We’re thinking about changing the contract of an employee who was recently TUPE-ed over to us. Is this allowed?
Under TUPE, the ability to make changes to terms and conditions is minimal.. The buyer/transferee takes the transferring employees on their existing terms and conditions and can only make changes in limited circumstances.
Even where the employee agrees to the change, if it’s less favourable than their previous terms, and the sole or principal reason for the change is the transfer itself, it’ll be void unless:
a) The reason for the change is an ‘economic, technical or organisational’ reason b) The terms of the contract permit the employer to make such a variation.
We have just acquired a business but cannot take on all the staff. Can we dismiss them?
In this situation, it’s essential to take legal advice. Otherwise, you risk facing costly and time-consuming litigation. Suppose you dismiss an employee before or after a transfer and the principal reason is the transfer itself. In that case, you may face automatic unfair dismissal (for further information, see our page on unfair dismissal).
If, however, the reason for the dismissal is an ‘economic, technical or organisational’ reason, then it may potentially be fair (for example because of genuine redundancy).
