Step 3: Talk with the other employer
Once it's known that a TUPE transfer is going to happen, you should talk with the other employer to agree what to do next.
It can help for both employers to discuss and agree the following:
- which employees are in the group to transfer
- the transfer date
Both employers might also want to discuss:
- if the new employer will meet with the transferring employees and their representatives before the transfer
- if affected employees can visit the new employer's premises to see what it’s like
It can be helpful and reassuring for staff if the new employer is there to answer any questions and give information directly. You should both agree what you want to say before any meetings to avoid any misunderstandings.
If you cannot agree on these points or whether TUPE applies to the transfer, you might want to get legal advice.
Make a transfer plan
Both the old and new employers should have a transfer plan and share it with all employees. A plan can help to reduce any staff concerns and make sure you follow the process you outlined.
You should identify who will manage the transfer and make sure they have enough time to make, follow and change any plans as the transfer progresses. It's often best for one person to have this responsibility so there’s a clear point of contact and they can oversee communications.
This person should work with any trade union or employee representatives when making the plan. It's a good idea for staff to be involved early on in the transfer process so they feel reassured when the transfer happens. Being transparent with plans and engaging with staff throughout the process will help keep positive relationships with staff.
Give employee liability information (ELI)
By law, the old employer must provide the new employer with specific information about the employees transferring. This is known as 'employee liability information' (ELI).
Employee liability information includes:
- their identity
- their age
- their written statement of employment particulars
- any disciplinary and grievance records, or ongoing cases, from the last 2 years
- any agreements between the old employer and a trade union ('collective agreements') that affect the employees' terms and conditions
- any claims related to the employees' employment that they've made against the old employer in the last 2 years or that the old employer believes they may make when they transfer
When the old employer must provide ELI
The old employer must give ELI to the new employer at least 28 days before the transfer date. But it's a good idea to provide this information early on. ELI must be accurate, up to date and provided in a secure way.
If any employees decide they do not want to transfer, the old employer must update ELI as soon as possible and inform the new employer.
Checks before sending ELI
The old employer should check if:
- they've included all staff policies which cover any written terms – policies often include terms and conditions not found in employment contracts
- any recently agreed changes to terms and conditions are included in employment contracts
- any terms and conditions are not in writing by checking with a recognised trade union or employee representatives, for example if they were agreed verbally
- any changes to terms and conditions have been agreed for particular employees, for example flexible working arrangements
If ELI is incorrect or not provided on time
The new employer should check if all ELI is provided on time and is correct.
The new employer might want to make a claim to an employment tribunal for compensation if:
- the old employer does not provide the new employer ELI at least 28 days before the transfer date
- any information is incorrect
- the old employer fails to inform the new employer of any ELI changes
If the claim is successful, the new employer could receive at least £500 for each employee the old employer gave incorrect or no information for.
Information the new employer must provide
The new employer must tell the old employer about any 'measures' they're thinking of taking after the transfer. These measures are usually changes to working practices, for example changes to the affected employees' pay dates or working patterns.
The old employer must inform affected employees about these proposed changes.