Step 4: Inform and consult about the TUPE transfer
Before a TUPE transfer, both the old and new employers must inform and consult with staff representatives (trade union or employee representatives) to explain why the transfer is happening and any changes you're proposing.
‘Inform’ is when you tell your affected employees or their representatives the facts about the transfer.
'Consult' is when you talk and listen to affected employees or their representatives on the changes to working practices (‘measures’) and genuinely consider their views.
You must inform about the details, including:
- the transfer
- why it’s happening
- who will transfer
It’s good practice for employers to keep all affected employees informed about the transfer, even where there are staff representatives. Not all employees will be members of a trade union, so they may not receive updates from the union representatives.
You may want to agree with staff representatives about what information you can share with employees, and what needs to remain confidential. Sharing details about intellectual property, for example copyrights or trademarks, could be damaging to the organisation.
You must consult with trade union or elected employee representatives about any changes to working practices (‘measures’) you’re planning as part of the transfer.
In a transfer, measures can include:
- change in location of work
- changes to pay dates
- new working patterns, for example hours of work
- different pension arrangements
- changes to trade union recognition or collective bargaining
The old employer must inform their affected staff about any measures the new employer might make, but they cannot consult on these changes because they have no control over them.
Who you must inform and consult
All affected staff must be included when informing and consulting about the transfer – this includes employees who are on sick leave and maternity, adoption or paternity leave.
Affected employees include:
- those transferring from the old employer to the new employer
- those staying employed with the old employer but whose colleagues will transfer out
- those already working for the new employer, whose work will be affected by the staff transferring in
If there are no recognised trade union or staff representatives
In organisations with fewer than 10 employees, if there is no recognised trade union or authorised staff representatives, you could either arrange an election with the affected employees to vote for representatives, or consult directly with every affected employee.
In organisations with more than 10 employees, if there is no recognised trade union or authorised staff representatives, employers must arrange elections with the affected employees to vote for representatives to consult about the transfer.
When employers should inform and consult
There is no fixed time period for employers to inform and consult employees and their representatives in a TUPE transfer. By law, you must allow enough time to inform and fully consult before the transfer.
It's a good idea to start the process as early as possible, to make sure you meet consultation requirements and allow enough time to include any of the suggestions from employees or their representatives which you agree to.
The time this will take depends on:
- the size of the organisation
- how many staff are affected
- the complexity of any changes
When considering a transfer
Before any decisions are made about a possible TUPE transfer, both the new and old employers should consider informing staff representatives and employees about the potential transfer. Although it’s not legally required at this early stage, it would help to avoid rumours and concern among your staff.
When preparing for the transfer
Once you decide to start preparing for the transfer, both the old and new employers must:
- inform staff representatives about the transfer (or employees in smaller organisations with fewer than 10 employees)
- consult staff representatives (or employees in smaller organisations) on any changes in working practices (‘measures’)
- arrange employee representative elections, if needed
- identify who will transfer
- answer questions, concerns and feedback
It’s good practice for the old employer to also speak regularly with the employees who will not transfer because they may be concerned about:
- job security
- how the work will get done
- what impact the transfer will have on the organisation
After the transfer
On the transfer date, the affected employees will transfer from the old employer to the new employer. You will no longer need to inform and consult, unless you plan to make redundancies and need to hold a redundancy consultation process.
For a smoother transition process, it’s good practice for both old and new employers to continue talking to employees and their representatives about the transfer, to help:
- your new staff settle in
- reassure all your staff, not just those who transferred
- integrate the new employees with existing staff
Information you must provide
Both old and new employers must inform the affected employees in writing about the details of the transfer, including why it’s happening.
The new employer must inform the old employer of any changes to working practices (‘measures’) that they are planning to make to staff transferring in. The old employer must pass this information on to the appropriate representatives or affected employees.
The information you must give affected employees in writing must include:
- confirmation that the transfer is happening, when it is expected to happen and why
- how you plan to carry out the transfer
- whether there’ll be any restructuring
- the number of agency workers employed, the departments they are working in and the type of work they are doing, if agency workers are used
- any measures the new employer is planning which may affect staff transferring in – for example, changes to working hours, job descriptions, salary payment dates or risk of redundancies
- any legal, economic and social implications
Legal, economic and social implications may include:
- legal – effect on contracts, statutory rights and collective agreements
- economic – the new employer’s financial worth and pay and benefits
- social – pensions and changes to start and finish times
How to keep staff informed
You should use your most appropriate internal communication channels to keep employees informed, for example:
- staff representatives
- workplace group (‘forum’)
- video calls
- your organisation’s intranet
- emails, letters or leaflets given directly to affected employees
It’s important to make the information available for all employees, including:
- those needing reasonable adjustments - for example, easy read formats for staff with learning difficulties
- any absent employees who are on sick leave and maternity, adoption or paternity leave
You should also put feedback channels in place to answer questions and address employee concerns throughout the process.
Giving notice of TUPE
You must give notice of a TUPE transfer but there is no fixed time period for this. As you’re transferring your employees’ contracts, not ending them, you do not need to give the same notice period as you would in other circumstances, for example if you were dismissing someone.
If you need to arrange elections for employee representatives
If there is no recognised trade union or authorised employee representatives, you may need to arrange an election of employee representatives with your affected employees to consult specifically on the transfer.
In smaller organisations with fewer than 10 employees, if there is no recognised trade union nor authorised staff representatives, you should either arrange an election or consult directly with every affected employee.
You must make sure that:
- all employees who stand for election are affected by the transfer when the election takes place
- affected employees are not stopped from standing for election
- affected employees are given the right to vote for employee representatives
- affected employees can vote for as many candidates as there are representatives to be elected in their part of the organisation
- votes can be made secretly and counted accurately
- sufficient employee representatives are elected to represent the interests of all affected employees
It’s good practice to encourage employees to stand for election and give them a second chance to do so if the initial election fails to attract enough candidates. You could reassure staff that they would receive employee representative training and explain their rights, to encourage nominations.
If the employees do not elect representatives within a reasonable time, you must give the information directly to the employees.
Rights of employee representatives
During the consultation, you should give employee representatives the right to:
- a reasonable amount of paid time off for representation duties
- reasonable access to affected employees and workplace facilities
- paid time off for TUPE training
You cannot dismiss an employee or treat them unfairly because they’re a trade union or employee representative. Find out more in the Acas guide 'Non-union representation in the workplace'.
How to hold consultation meetings
Consultation must be genuine and meaningful so employers must:
- enable representatives to contact the affected employees
- provide facilities for meetings and time to meet up with the affected employees
- seriously consider any responses and suggestions from the representatives
- try to reach agreement
It’s also a good idea to provide training for representatives to carry out their role effectively.
If you fail to consult, either the trade union or your employees could take you to an employment tribunal.
You do not have to make the changes suggested by your employees and their representatives during the consultation. But you must show that you’ve:
- discussed any changes with all affected employees and their representatives
- listened to their suggestions and fully considered them
- tried to reach an agreement
If you cannot reach an agreement, you should provide the staff representatives (or the affected employees if there are no representatives) with the reasons for rejecting their suggestions and explain why in writing.
Any employees not wishing to transfer to the new employer should tell their employer in writing before the transfer happens.
You should always ask for confirmation in writing that an employee has refused to transfer, if they object or complain.
You should treat this as though they are resigning, unless you decide to offer them an alternative job at your organisation.
It’s good practice to write back to the employee to explain the implications of their decision not to transfer, to make sure they have all the facts before they make a final decision.
If you offer them an alternative job and they accept, their length of service ('period of continuous employment') will continue if the new role starts before the date of the transfer.
If you’ve already provided the employee liability information (ELI) to the new employer, you must inform them about any employees who will no longer be transferring to their organisation.
For any employees who’ve chosen to resign, you’ll need to:
- confirm the notice period and agree a leaving date
- pay them any outstanding wages and holiday they’ve built up (‘accrued’) but not yet taken when their employment ends
Their employment will end on the date the transfer takes place. If the transfer happens before their notice period ends, you will not need to pay them for the remainder of their notice period.
If you do not inform and consult
By law, both the old and new employers must inform and consult during a TUPE transfer.
If you fail to inform or consult, you may be jointly or individually liable and could be taken to an employment tribunal by:
- the affected employees
- any recognised trade union
You will have failed to inform and consult if:
- there is no recognised trade union and you failed to arrange an election of employee representatives to consult with
- you did not genuinely and meaningfully consult with employee representatives
- you have fewer than 10 employees and you did not consult them directly or their appropriate representatives
- there is a recognised trade union and you did not consult its elected representatives
Who pays compensation
Either employer could be made to pay compensation to affected employees if the other employer failed to consult properly. Employers should get agreement (an 'indemnity') from the other employer in the transfer plan to pay for potential costs caused by their failure to consult.
If an employee’s claim to an employment tribunal is successful, either employer could be liable to pay the compensation of up to 13 weeks’ gross uncapped pay for each affected employee, or it could be split between you both.