Business Transfers, Outsourcing and TUPE Advice

Whenever employees are to be moved to a new employer, or there is potential for it to be argued that they should move to a new employer, a complex legal regime needs to be considered.

TUPE Regulations

The Transfer of Undertakings (Protection of Employment) Regulations 2006 protect employees who fall in scope, automatically transferring their terms of employment, continuity and rights to the new employer.

The Regulations also impose consultation obligations that can be extremely costly if they are ignored.

Our team regularly provides advice to clients in relation to the TUPE Regulations, both on stand-alone projects and by providing support to our colleagues in our Corporate and Commercial Team. We provide clients with straightforward advice to help them navigate through this complex area, ensuring that employees transfer as smoothly as possible (or ensuring that clear reasons are in place for why employees should not transfer).

As a result, the risk of potential litigation is minimised and employee relations remain as strong as possible during an uncertain time.

In particular, we advise clients on their obligations to inform and consult employees in relation to a TUPE transfer, together with steps that may be taken to negotiate changes to terms and conditions or reorganise staff following transfers.

We are also able to advise on TUPE issues in the context of insolvency.

We are also experienced in advising employee representatives and large groups of employees in relation to claims and remedies arising out of failure to comply with obligations under TUPE including those in relation to consultation.

Recent examples of work in this area include:

• Advising purchasers of various businesses on the TUPE aspects of the purchase including, in one case, the employment liability associated with the transfer of 2,500 employees

• Acting for an employer, after its purchase of a retail business, on the successful resolution of a claim brought by 22 ex-employees, alleging a failure to inform and consult under TUPE

• Providing all employee communications to a North West manufacturing business undergoing a TUPE transfer, including letters, scripts and Frequently Asked Questions sheets

• Acting for a group of 45 former employees, on a multi-million pound, multi-party TUPE employment tribunal claim arising out of the collapse of an international IT outsourcing provider

• Advising various employers on changing terms and conditions of employment following a TUPE transfer

• Providing training on the election of employee representatives and training the representatives themselves to ensure effective consultation can take place

• Advising a business on the impact of TUPE in relation to a critical new contract it was entering into, including a calculation of the cost of redundancies, tactics around managing its approach that TUPE did not apply and drafting appropriate indemnity protection