Mergers & Acquisitions and all things TUPE

The Transfer of Undertakings Protection of Employment (TUPE) is a complex and technical process aimed at protecting employees. The regulations apply when employers are transferring a business or in a service provision change scenario.

If you are a business owner and are on the acquisition trail or about to divest or merge with a business the checklist provided in this blog will guide you to ensure that you have covered all the important steps involved in the process.

The specific steps involved in the TUPE process will vary depending on the circumstances. Whatever the case may be, it is risky if it’s not handled correctly.

You are required to consider the following key areas:

• Identifying impacted employees
• Gathering information and consultation
• Employee liability information

Identify all impacted employees

This is often the most difficult part of the process. It involved identifying the staff members to transfer to the incoming employer.

The decision will depend on their roles before the transfer. Staff on short-term absences as well as those on fixed contracts will need to be considered.

If you are selling the whole business, then all employees will transfer. If you are transferring a service provision, you will need to consider the employees working within part of the business.

Other considerations include:

• Informing and consulting with employees about the transfer
• Engaging with trade union officials or elected representatives
• Use existing communication channels to provide information directly to employees
• Provide communication mechanisms to answer questions and address any employee concerns

Gathering information and consultation

After establishing the employees affected by TUPE, you need to provide information about the employees to the incoming employer.

You should provide the following information:

• The fact that the transfer is taking place
• The date of the transfer
• The reason for the transfer
• The legal, economic, and social implications
• Any proposed measures connected with the transfer that’ll affect the employees if no measures are in place

There is no set time limit for providing this information, you should complete it in sufficient time.

Employee liability and due diligence

As well as employers providing information to their employees you are also obligated to provide the incoming employers with certain information.

Regardless of if TUPE applies, if any organisation is buying a business or bidding for a contract to provide a service must undertake due diligence. This allows for financial forecasting and determining the terms and conditions of the transferring staff.

28 days before the transfer you must provide the buyer with information relating to the rights and obligations of the transferring employees in writing. If you fail to do so it can result in compensation by a tribunal.