Both the employer transferring employees out (the transferor) and the new employer receiving transferred employees (transferee) have specific obligations under TUPE legislation to inform affected employees about certain things relating to the transfer, and also to consult on some aspects. Although we strongly advise employers on both sides to take professional advice relating to their specific circumstances, here’s our quick guide to informing and consulting during a TUPE transfer.
As transferor, there are certain pieces of information you must give to those employees who will be affected by the transfer.
You must tell them that the transfer is happening, and why.
- If there are going to be any “legal, economic or social” implications for them, you need to tell them. This would be things relating to their contracts, financial implications or other things impacting their working conditions.
- You need to tell them whether you (or the transferee if you are the transferor) anticipate taking any “measures” as a result of the transfer, and if so, what these are. “Measures” would be things like changes to location, job losses or changes to working hours arrangements.
- You must give them up to date information about the use of agency workers.
As well as providing the information outlined above, you must also consult employees if you envisage taking any measures as a result of the proposed transfer.
You should consult genuinely, with a view to answering questions and seeking agreement, listening to and considering suggestions and explaining your reasons if you need to reject them. However this is not a negotiation and you do not need to consult on the decision to make the transfer in the first place.
Who to inform and consult with
Both information provision and consultation should be conducted with employee representatives, unless you have fewer than 10 employees in which case you can talk directly to the staff.
If you have trade unions, their representatives can be used for this process, alternatively you can conduct an election to find suitable representatives. It is worth noting that even if the size of the workforce means employee representatives must be consulted, this doesn’t mean you can’t also communicate with and involve staff directly.
Transferee information and consultation with transferring employees
The responsibilities to inform and consult only apply to the employer’s own staff – there is no requirement for the transferee to have any contact with the employees who will be coming over.
However clearly there are several advantages to the transferee both informing and consulting employees of the transferor who will be moving across. TUPE is an unsettling, stressful and disruptive process for all concerned, so if as transferee you can engage with your new staff as soon as possible you can go some significant way to reducing this. You can start building a relationship with transferring employees before the transfer takes place, answer their questions directly, provide reassurance on the many things they may be concerned about, and reduce significantly any negative impact of the transfer on your business’s performance.
There is an awful lot of information about their new employer that transferring employees are not obliged to be told, but would find very useful and reassuring. Building relationships with new line managers and new colleagues before the transfer takes place can ease the transition, reduce uncertainty and speed up the process of integration.
Similarly, if you are proposing to take measures, possibly including redundancies, as a result of the transfer, it makes sense to start consulting on these as soon as possible. The period where people know a change is coming but it hasn’t started yet can be enormously stressful, so if you can reduce the uncertainty by starting consultation before the employees transfer over, not only will people feel something is actually happening rather than looming over them, but they will get to the stage where they know exactly how the transfer has impacted them and their role sooner, meaning the process of team recovery will be made smoother, easier and can take place more quickly.
So if you are entering into a TUPE process which will involve employees from somewhere else coming to you, try to agree with the transferor a joint approach to information and consultation; one which involves allowing you contact with your new employees as soon as possible.
TUPE can be complicated at the best of times but when trying to work out who you need to inform and consult about what, and when and how, it can feel like a minefield. If you would like advice on managing this process in your organisation do get in touch.