Drawing from ACAS’s guide, we have compiled a TUPE checklist specifically designed for the transferor. This document encompasses all the essential aspects that must be addressed or completed before finalizing the transfer, ensuring a thorough and compliant process
The Transfer of Undertakings Protection of Employment (TUPE) is a comprehensive and technical process designed to safeguard employees during business or service provision transfers.
Established in 2006, this regulation entails various considerations that employers must navigate. While previous articles have covered different aspects of the process, this TUPE transfer checklist serves as a comprehensive guide to ensure that all necessary steps are undertaken.
Although there is no official ACAS TUPE checklist, ACAS does offer a general guide on handling TUPE transfers, providing a step-by-step breakdown of the process and offering advice on best practices.
TUPE checklist for employer
The specific steps within the TUPE process may vary depending on factors such as whether the entire business or only specific service provisions are being transferred and whether you are the incoming or outgoing employer.
However, regardless of the circumstances, it is essential to address the four key elements of the process, which include
- Identifying affected employees.
- Gathering information and consultation.
- Employee liability information (and due diligence).
- Terms and conditions.
Our comprehensive TUPE checklist above provides a detailed breakdown of the necessary tasks outlined in the respective sections, encompassing all the essential elements. By utilizing this checklist, you can effectively navigate the TUPE process and ensure adherence to your obligations under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”).
Identify all affected employees
The initial stage of the process, which is often the most challenging, involves identifying the staff members who will be transferring to the incoming employer.
The decision regarding which employees will transfer depends on their roles prior to the transfer. It is important to consider all staff members, including those on short-term absences and those on fixed contracts. It is crucial to note that agency workers are not eligible for transfer under this process.
In the case of selling the entire business, all employees will transfer to the new employer. However, when transferring a specific service provision, consideration must be given to the employees working within that particular part of the business
In addition, there are several important considerations at this stage:
- Ensuring effective communication with employees and providing clear information about the transfer.
- Conducting consultations with trade union officials or elected representatives to address any concerns or questions.
- In the absence of an existing representative, arranging for the election of an employee representative who can act as a liaison.
- Offering necessary training to employee representatives to enable them to fulfill their roles effectively, and providing suitable facilities for their activities.
- Utilizing existing communication channels to directly share relevant information with employees or through their representatives.
- Establishing feedback channels to address any inquiries, resolve concerns, and ensure effective communication throughout the process.
Gathering information and consultation
Once the employees affected by TUPE have been identified, it is crucial to convey certain information to both the incoming employers and the transferring employees. Specifically, you must provide employees (or their representative) with the following details:
- Notification that the transfer is taking place.
- The proposed (or actual) date of the transfer.
- The reasons behind the transfer.
- The legal, economic, and social implications of the transfer for the affected employees.
- Any proposed measures associated with the transfer that will impact the employees, or clarification if no measures are planned.
Consultation must be conducted with union representatives or an employee representative, as applicable. In cases where there is no recognized independent trade union, direct consultation with employees can occur for establishments with fewer than ten employees.
While there is no specific timeframe specified for providing this information, it is important to ensure that it is provided in sufficient time to allow for meaningful consultation to take place.
Failure to fulfill this obligation may result in compensation claims by employees, with a maximum potential payout of up to 13 weeks’ pay per employee.
Employee liability and due diligence
In addition to providing information to your employees, you are also obligated to furnish the incoming employers with certain details. Whether or not TUPE applies, any organization acquiring a business or bidding for a service contract must conduct due diligence to facilitate accurate budget planning and determine the terms and conditions applicable to the transferring staff.
You are required to provide the buyer with written information pertaining to the rights and obligations of the transferring employees no later than 28 days before the transfer date.
The information to include at this stage comprises:
- The identities and ages of the transferring employees.
- Details of their employment contracts, encompassing terms and conditions, remuneration, working hours, holiday entitlements, length of service, etc.
- Any relevant collective agreements.
- Information regarding any formal disciplinary actions taken against transferring employees within the last two years.
- Information regarding any formal grievances raised by transferring employees within the last two years.
- Information concerning any legal actions brought by transferring employees against your organization within the last two years.
- Information about any potential legal actions that you anticipate a transferring employee might initiate.
Failure to provide this information or supplying incorrect information may lead to compensation awarded by a tribunal. The tribunal will calculate the payment based on a minimum award of £500 for each employee whose information was either inaccurate or not provided at all.
Terms and conditions (Harmonisation)
As part of providing employee liability information, it is crucial to furnish the incoming employer with a comprehensive list of the employment terms and conditions for all transferring employees. This list should encompass the terms and conditions that can be transferred during the process.
To ensure no terms are overlooked, consider the following questions:
- Have copies of relevant company policies, including those in the employee handbook, been sent?
- Have any recent changes to the terms and conditions, not yet reflected in the employment contracts, been included?
- Are there any orally agreed-upon terms and conditions that the incoming employer should be aware of?
- Are there any unwritten terms and conditions that have been established over time through customs and practices?
- Are there any recognized trade unions among the transferring staff? They can provide details on collective agreements, recognition agreements, consultation agreements, etc.
- Have any of the transferring employees agreed to variations of the standard terms and conditions, such as flexible working arrangements or reasonable adjustments?
By addressing these considerations and providing a comprehensive overview of the employment terms and conditions, you can facilitate a smooth transition for the incoming employer and ensure compliance with TUPE requirements.
Read more: When does TUPE not apply
In conclusion, having a comprehensive TUPE checklist is essential for navigating the intricacies of the Transfer of Undertakings Protection of Employment (TUPE) process. This checklist serves as a valuable tool for employers to ensure compliance with their legal obligations, effectively manage employee transfers, and minimize potential risks and liabilities.
By systematically addressing each step and element outlined in the checklist, employers can facilitate a smooth and transparent transition, protecting the rights and interests of both transferring and incoming employees.
The TUPE checklist acts as a practical guide, assisting employers in navigating this complex process with confidence and ensuring a fair and lawful outcome for all parties involved.
With over three decades of experience in the business and turnaround sector, Steve Jones is one of the founders of Business Insolvency Helpline. With specialist knowledge of Insolvency, Liquidations, Administration, Pre-packs, CVA, MVL, Restructuring Advice and Company investment.