TUPE ~ Information Exchange and Consultation

TUPE. Four letters loved by employment lawyers and feared by employers. But it doesn't have to be that way. When staff are transferring from one employer to another there are rules to be followed. It is particularly important to inform and consult with the affected employees. Mark Shortell provides the following guide to what information needs to be exchanged, what consultations need to cover and who needs to be consulted.

Exchange of information

The transfering employer - the transferor - must provide the receiving employer - the transferee - with specific information which will assist them in understanding the rights, duties and obligations in relation to those employees who will transfer. This information should be in writing or in other forms that are accessible to the transferee, and should be provided at least two weeks before the completion of the transfer.

The information that must be provided is:

• the identity of the employees who will transfer;
• the age of those employees;
• information contained in the 'statements of employment particulars' for those employees;
• information relating to any collective agreements which apply to those employees;
• instances of any disciplinary action within the preceding two years taken in respect of those employees;
• instances of any grievances raised by those employees within the preceding two years;
• instances of any legal actions taken by those employees against the transferor in the previous two years, and instances of potential legal actions which may be brought by those employees where the transferor has reasonable grounds to believe such actions may occur.

Consultations with the affected workforce

There is a duty on both the transferor and transferee employers to inform and consult representatives of their employees who may be affected. Those affected employees might include:

• those individuals who are to be transferred;
• employees in the transferor business who will not transfer but whose jobs might be affected by the transfer
• employees in the transferee business whose jobs might be affected by the transfer.

Consultations should commence long enough before the transfer to enable the employer to properly consult over the following topics;

• that the transfer is going to take place, approximately when, and why;
• the legal, economic and social implications of the transfer for the affected employees;
• whether the employer envisages taking any action in connection with the transfer which will affect the employees, and if so, what action is envisaged;
• where the previous employer is required to give information, they must disclose whether the prospective new employer envisages carrying out any action which will affect the employees, and if so, what. (The new employer must give the previous employer the necessary information.)

If any action is envisaged which will affect the employees, the consultation must be undertaken with a view to seeking the agreement of the employee representatives to the intended measures. During these consultations the employer must consider and respond to any representations made, and if rejecting any, must state the reason for rejection.

Who should be consulted about the transfer?

Where employees are represented by an independent trade union recognised for collective bargaining purposes, the employer must inform and consult an authorised official of that union. The employer is not required to inform or consult any other employee representatives in such circumstances.

Where employees who may be affected by the transfer are not represented by a trade union, the employer must inform and consult other appropriate (e.g. works council) representatives of those employees. These may be either existing representatives or new ones specially elected for the purpose.

For further information on any TUPE issues, please contact mark@hradvantage.co.uk or call our head office on 01494 451681.

March/April 2007