TUPE information and consultation checklist

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), where a relevant transfer of an undertaking takes place, those employees who are employed by the transferor employer, e.g. the seller of the business, immediately before the transfer automatically become the employees of the transferee employer, e.g. the buyer of the business, from the time of the relevant transfer, on the same terms and conditions of employment that they previously enjoyed with the transferor employer. The exception is that special rules apply to the transfer of occupational pension scheme rights.

Where there is a TUPE transfer, you have obligations to inform and consult appropriate employee representatives as to what is happening and whether employees will be affected. Appropriate representatives may be trade union representatives, representatives selected for other purposes but who have authority to act or specially elected representatives. Micro-businesses with fewer than ten staff are permitted to inform and consult with their employees directly where there is no existing recognised trade union or employee representatives.

Both the transferor and the transferee must inform appropriate representatives of their own staff of the following:

• the fact that a transfer is to take place, the date or proposed date, and the reason for it (but they are not obliged to justify the transfer or discuss its merits)
• the legal, economic and social implications of the transfer for any affected employees. This may include an explanation of the legal effect in relation to employment contracts, collective agreements and statutory rights, the impact on pay and benefits, and any relocation plans
• information on the number of agency workers engaged, the areas of the business in which agency workers are being used and the type of work being carried out by agency workers.

If you are the transferor and envisage taking any measures in connection with the transfer in relation to any affected employees, you must also consult with the employee representatives. While the duty to consult is not triggered if no measures are intended, voluntary consultation may reduce the risk of disputes and assist in achieving a smooth transition.