TUPE
TUPE
The TUPE Regulations seek to protect employees’ rights if they are transferred to a new employer. This area of employment law can be particularly difficult to navigate for the unfamiliar, not least because of the ever-evolving case law. Kate has significant experience in resolving TUPE disputes, negotiating TUPE related warranties and indemnities and managing TUPE related claims.
Commercial agreements
There are a number of TUPE related warranties and indemnities which are negotiated in advance of a TUPE transfer. Depending on whether your organisation is transferring employees (transferor) or receiving employees (transferee), it is important that you do not agree to overly onerous provisions as part of the commercial agreement. Kate can draft or negotiate appropriate warranties and indemnities on a number of issues including the payment of accrued but unused holiday pay, “woodwork employees” (i.e. those unexpected employees who you are made aware of after the transfer) and liability for claims.
TUPE disputes
It is not uncommon for parties to dispute that TUPE applies, or accept that TUPE applies but disagree on the employees who are to transfer. Kate has many years’ experience in negotiating and resolving such disputes and is aware of the common tactics used by employers to “offload” unwanted employees as part of a TUPE transfer. As parties are often working to tight timescales when TUPE is concerned, it is important to seek advice sooner rather than later if you have concerns.
Changes to terms and conditions
In the context of a TUPE transfer, the ability to change employees’ terms and conditions is limited, even if the employees consent to the variation. Kate can guide you through the limited exceptions under the TUPE Regulations if you need to make changes to employees’ terms and conditions.
Obligations to inform and consult
Parties have a duty to inform (and if appropriate), consult employee representatives in advance of a TUPE transfer. If the business employs fewer than 50 employees, (irrespective of the size of the transfer) or the proposed transfer involves fewer than 10 transferring employees, the employer may consult the employees directly rather than the employee representatives (who may be recognised trade union representatives or elected employee representatives).
TUPE in an insolvency context
Please seek further advice if you are a business facing insolvency proceedings, or are considering purchasing a business which is subject to insolvency proceedings. Depending on the type of insolvency proceedings and timing of the transaction, limited insolvency exceptions apply to encourage the “rescue” of businesses that are or are likely to become insolvent.
Claims
If you require further advice on the merits and value of potential TUPE claims, please get in touch. Kate has significant experience in representing employers both during early conciliation proceedings and at employment tribunal.
