TUPE Transfers At Tinsdills

Any dismissal of an employee (whether before or after the TUPE transfer) will be automatically unfair if the sole or principal reason for the dismissal is the transfer itself. However, in limited circumstances, where the employer can prove that there is an economical, technical or organisational reason for the dismissal that entails changes in the workforce, the employer may have a defence against any claim for such automatic unfair dismissal. That does not mean the employee would not still be entitled to bring a claim for unfair or wrongful dismissal, though if the correct dismissal process was not followed. It is therefore important to take specialist employment law advice before any TUPE transfer, particularly if you think there will be a need to dismiss any of the transferring employees or, indeed, any of your existing employees.

Strictly speaking, it is both the outgoing and incoming employer who bear the burden of complying with TUPE. However, in practice, whilst the outgoing employer has a responsibility to provide certain employee liability information, the onus will rest more so with the incoming employer as they will inherit all responsibility and liability for the transferring employees immediately on completion of the business transfer. The incoming employer should therefore ensure they undertake a thorough due diligence exercise before committing to purchase the business so that they can be certain of any ongoing issues that they will inherit on completion of the transfer.

Unlike with redundancy consultations, there is no specified minimum period of consultation that is required prior to a TUPE transfer. As part of the TUPE consultation, the employers must provide prerequisite information to the elected employee representatives (or to the employees directly where there are less than ten employees in the transferring business) “long enough before a relevant transfer to enable the employer of any affected employees to consult the appropriate representatives”. It is therefore up to the employers to decide what they think would be reasonable in the circumstances though it may still be sensible to consider whether using the minimum consultation period that would apply if the TUPE transfer was a redundancy situation would provide for a reasonable period of time. Ultimately though, if an employee was to bring a claim for failure to properly consult under TUPE, it would be a matter for the employment tribunal to decide.