Transfer of undertakings (TUPE)
On 31 January 2014, new regulations on TUPE came into effect updating the 2006 regulations. Acas has produced a leaflet to help employers better understand what the changes mean and how they may affect their business.
View / download TUPE changes 2014 [162kb]
Acas will also be producing a full guide on TUPE and how to manage the process effectively. This guide will be available in the coming months. We will be providing updates within our free e-newsletter.
The TUPE regulations ensure:
- that when a business transfer occurs, employees moving across to the new employer (known as the incoming employer) bring with them their length of service and terms and conditions, and
- that there is a structure for the transfer process.
The TUPE regulations usually apply when:
- a business or part of one is sold to the incoming employer, or
- two or more companies cease to exist and combine to form a new company
- activities are outsourced to a contractor or brought back in house.
TUPE applies regardless of the size of the organisation, although there are minor differences concerning how smaller employers with less than 10 employees are required to consult.
Generally speaking, the TUPE regulations apply to employees whose work moves over to the incoming employer. However, there are very specific rules around this which are covered in more detail in the guidance.
An introduction to TUPE
In this video, one of our trainers provides an overview of the TUPE regulations and explain how Acas' services can help employers and employees.
Terms and conditions under TUPE
Under the TUPE regulations existing terms and conditions transfer with staff to the incoming employer and remain the same as they were with the original employer (known as the outgoing employer).
Following a transfer an employer may wish to change the terms and conditions of transferring staff, however, any changes where the sole or principal reason for the change is the transfer will be usually be void, although the guidance covers circumstances where there are exceptions to this rule.
Employers who wish to make changes to terms and conditions that have no relation to a TUPE transfer should read the Acas leaflet Advice leaflet - Varying a contract of employment [244kb].
Disclosure of employee liability information
There is a duty on the outgoing employer to supply information about the transferring employees to the incoming employer. This information is known as the employee liability information.
The following information must be provided:
- the identity and age of the employees who will transfer
- information contained in the written statement of those employees
- details of any disciplinary action taken against an employee in the last two years
- details of grievances raised by an employee in the last two years
- instances of legal actions taken by employees against the outgoing employer in the last two years (any court or employment tribunal claims)
- information regarding any collective agreements
This information should be given in writing at least 28 days before the completion of the transfer. However, both outgoing and incoming employers must comply with data protection when handling personal information.
Information and consultation
The TUPE regulations require both outgoing and incoming employers:
- to inform/consult collectively with either recognised trade union officials or employee representatives about the transfer.
- to arrange for the election of employee representatives where there are no appropriate representatives already available.
- The only exception to this requirement is that businesses with fewer than 10 employees are not required to invite the election of representatives for consultation purposes if no existing arrangements are in place. However, they will still need to consult with their employees individually.
Both employers should consult with:
- those employees who are to be transferred, and
- those employees who will not transfer but whose job may be affected.
Consultation should be meaningful and begin long enough before the transfer to allow the employer to consult with the representative about:
- when and why the transfer is going to take place, and what the implications of the transfer will be for the affected employees
- the reason for the transfer and any measures the outgoing and incoming employers expect to take in relation to the employees
Both employers must consider any representation made by employee reps during the consultation period, and if any proposals are rejected the employer must give a reason for the rejection.
Dismissal and redundancies
Incoming and outgoing employers are often able to minimise or prevent redundancies and other dismissals when transfers take place. However, there will be occasions when they cannot be avoided.
If a dismissal was going ahead regardless of the transfer or a new development arises, then TUPE regulations are unlikely to apply.
If the sole or principal reason for the dismissal was the transfer, it will be treated as automatically unfair if challenged.
Where a genuine redundancy situation arises as a result of a transfer, there is a need to both collectively and individually consult with affected employees when the new employer is making (or intending to make) 20 or more redundancies within a 90 day period.
Where there are fewer than 20 employers being made redundant within a 90 day period, there is still a legal requirement to individually consult but there are no prescribed time limits in which to do so.
For more information on redundancy, go to www.acas.org.uk/redundancy.
Collective agreements which are in place at the time of the transfer will also transfer to the incoming employer. Collective agreements negotiated between an employer and a trade union may include matters such as pay rates, hours, and other terms.
Terms and conditions from collective agreements may be renegotiated after one year provided that overall the contract is no less favourable to the employee.
In some circumstances contractual changes arising from new collective agreements agreed by the outgoing employer are not required to be incorporated after a transfer.
For more information, see the guidance.
Acas training for employers
Acas training includes an overview of the TUPE process and covers best practice approaches for employers when preparing for a TUPE transfer. It also explains employee rights when the work they do or business they work for transfers to a new employer
We will also detail the changes to the TUPE Regulations which come into effect on 31 January 2014.
View event dates and locations
View related Acas training and course dates in your area for:
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