The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) aims to protect both jobs and terms and conditions when businesses are bought and sold or activities are moved between organisations, for example, during out-sourcing.
In simplistic terms, this means that when work moves from one organisation to another, the employees doing that work move with it and are largely protected from being disadvantaged by the move.
Responsibility of the Transferor
If you are part of the transferor’s team, you will have been asked by the transferee’s team for the employee liability information relating to the individuals who will transfer. This may arise as part of the initial negotiations or later but invariably much of it will be needed long before the deadline of 28 days pre-transfer set by TUPE.
It is helpful to think about this information as a work in progress, with final employee liability information confirmed four weeks before the actual transfer but anonymised information provided before that on the basis that it may change in the intervening period.
By far the best way to collate and coordinate this information is to use a spreadsheet with the questions asked by the transferee as the row headings and the employee reference numbers (using names in the final version) as the column headings.
Having this single document will enable both the transferor and transferee to see the information that is being provided. Where other documents are being requested, or general questions are being asked, these should be listed or addressed in narrative form on a separate document.
Even in anonymised form, this information is sensitive, so it is good practice to password protect
these documents or take other reasonable steps to prevent the information from being disclosed inappropriately.
Note that data protection is not a legitimate reason to refuse this information as you are legally required to provide it under TUPE.
Refusal to provide this information or providing inaccurate information is a breach of TUPE.
Responsibility of the Transferee
For the transferee, due diligence begins from the moment a transfer is being contemplated but can begin from an HR perspective once the initial employee liability information and associated documents relating to policies and terms and conditions are provided.
At this point, the transferee can consider the transaction and the employee resource implications. If you are part of the transfer team you will need to be involved in ensuring such needs are addressed and in identifying additional questions for the transferor and potential issues for the organisation.
This is also where the benefits of having established a constructive relationship with the other team can pay dividends as you may need to make a number of additional informal requests in order simply to understand some of the information that has been provided.
It will also be important to share at least your assessment of the employee information provided with the other members of your project team. Finance colleagues will want to understand the potential financial implications and liabilities, whilst operational managers will be more concerned with skills, experience and status.
If your business is going through or planning on going through a TUPE transition then please contact us for help or advice, let us take the burden and stress away from you. info@applehr.co.uk