When preparing for a TUPE transfer on the sale of a business, both the seller (the transferor) and buyer (transferee) have a duty to inform and consult about the transfer.
But what does this involve?
The seller must inform the appropriate representatives of the following information:
· The fact that there will be a transfer, the date (or proposed date) when it is to take place and the reasons for it.
· The legal, economic and social implications of the transfer on the affected employees.
· The measures which both the seller and the buyer envisage need to be taken regarding the affected employees due to the transfer. If there are none, this should be made clear.
· The number of agency workers working for your company, the parts of the company they are working in and the type of work they are carrying out.
This must be done in good time before the transfer to allow the employer to consult with representatives of affected employees.
They also need to provide the buyer with Employee Liability Information (LEI), including:
1. Name and age of transferring employees
2. The date continuous employment began
3. Key terms of employment as per their contracts of employment
4. Disciplinary action taken in last two years
5. Grievances raised in last two years
6. Legal action taken by employees in last two years
7. Potential legal action the employer thinks employees might raise
8. Details of collective agreements
This must be done at least 28 days before the transfer.
Buyers need to provide measures which they envisage may be taken regarding the affected employees due to the transfer. They should also request ELI from the seller.
The rules are more lenient for business with fewer than 10 employees.
A failure to adhere to this duty to inform or consult can result in a claim being lodged at an Employment Tribunal. To minimise the risks, you should seek legal advice at the earliest opportunity.