Great. That’s something we can take care of for you. Whether you’re considering taking a transfer of a group of employees (or even one employee) from a different business or you’re trying to avoid taking such a transfer, you’re in the right place.
There are quite a few rules here and most of them are unavoidable, but we’ll keep it straightforward. If you’re following our process checklists and communications guidance, you should feel confident about the steps you’re taking. We’ll ensure that you know where you stand and if you’re taking on the transfer, your new employees will understand what you are proposing, making for a smoother and less challenging transition process.
The law applies whether the transfer is triggered by a group reorganisation, the acquisition of a business, or a change of contractor on a commercial contract (common with outsourcing or insourcing relationships). But it doesn’t normally apply to an employee or employees who choose to change employer for their own reasons, or who are seconded or where there is a purchase of a business by share transfer only.
There are a few occasions when the rules might apply but then again, they might not. Taking advice in these situations can make a real difference to your risk of successful employee complaints against you. Typically, these situations cover where:
1. it’s not clear that the transferring employees form an identifiable group of individuals to which the rules can apply
2. you’re taking over responsibility for a commercial contract for services and intend to operate very differently to how the contract has previously been managed and resourced by another business
If either of these scenarios apply to you, we’ll help you navigate safely through it. A good rule of thumb is to agree upfront with the transferring employer that you’ll both err on the side of caution and follow the rules. In the long run, it will generally be a lot less costly and disruptive than risking employee complaints, tribunal actions and a potential derailment of the transfer altogether if as a result of all the hostility, you suddenly have to back out.
You don’t have to agree to do this. However, your lack of agreement won’t prevent the employees that would have transferred from asking an employment tribunal to determine whether the rules apply.
Ending the employees’ employment in the context of a potential dispute can be a rather nuclear solution for the transferring employer, both in terms of your relationship and negotiations with the transferring employer and also for the employees, who are left with great uncertainty about their future job security. It is an outcome that commonly triggers complaints against you as well as their current employer.
If you find yourself in a position where the application of the transfer rules isn’t clear, we’ll recommend action to ensure that you and your business can fully assess and manage the risks and also the impact of taking on the affected employees.
So what are these rules? The law that governs employee transfers is called the TUPE Regulation, (you’ll hear it pronounced ‘Two-pee’ by people familiar with it). It’s designed to protect employees where their job continues to remain necessary but there’s about to be a change in the identity of the business that they have been working for and that is legally responsible for employing and paying them.
Both the existing and the future employer are affected by the rules and both will be required to take defined steps and follow legally mandated processes during the transfer phase. Here, we’re dealing with the impact on you as the new employer to whom the employees are being transferred.
Finding out that you’re being transferred can unsettle even those employees who in fact face minimal changes to their daily working experience. For those facing more significant alterations, such as a change of location or a change of reporting structures and senior personnel, the intended transfer can provoke distress, complaints and challenges.
We’ll equip you to ‘line up the ducks’ and ensure that the transferring employer handles the transfer proposal and any subsequent process correctly and fairly.
On this page we’ll show you exactly what’s involved in each stage of a typical employee transfer process where the TUPE rules apply and how long you should expect each stage to take.
Transfers of employees from businesses outside the UK are not covered here. If you’d like us to help you with this, do get in touch and we can talk you through how we’ll help.
