Step One: determine whether TUPE applies
As soon as we become aware that there is a potential for part of the operations of an external organisation to be transferred into us, irrespective of the number of employees involved, we will need to assess whether the transfer will be covered by the TUPE regulations. This will need to be established early, not only to ensure that all legal duties arising from TUPE are actioned in advance of the transfer taking place, but also to ensure that we gain the confidence and co-operation of the staff that may be transferring.
Step Two: establish which employees are likely to be transferred
As the new employer, immediately prior to the transfer it will be our duty to take over the contracts of employment of all employees that will transfer. In order to comply with this requirement, we will need to reach agreement with the old employer as to which employees will transfer. The old employer should provide us with a definitive list of staff that are considered to be affected by the transfer.
Step Three: consult with representatives
The old employer is responsible for consulting appropriate representatives within their organisation about the forthcoming transfer. We may also be asked to become involved in the consultation meetings with groups of staff or individuals which will be led by the old employer. The old employer must provide the following information to the affected staff and their representatives so we should ensure that this information will be available:
1. Reasons why the transfer is taking place along with the timescale of the transfer.
2. The legal, economic and social implications of the transfer of employees. Legal implications will include an explanation of the effect of the transfer on employment contracts, statutory rights, and collective agreements. Economic implications will include any effect on an employees pay and other employment benefits. Social implications will include matters such as whether there is a likely to be a need to relocate, or a change in working hours.
3. Any measures we might take that might affect the employees. Although this obligation falls to the old employer, we will play a significant role in ensuring that this information is accurate and delivered in a timely manner. The old employer will want to consult with its employees in good time to allow their employees to make any representations. We will, in particular, need to make sure that we inform the existing employer of any measure with implications for the affected employees; these could include for example a change in the place of work or change in the working pattern.
4. There is also a duty on us to consult with our own employees representatives in respect of employees whose employment or conditions of employment may be affected by the transfer. So, if the transfer is likely to impact in any way on staff currently working for us, we should consult with staff and their appropriate representatives.
5. As the new employer, we will inherit the recognition agreements with the trade unions recognised by the old employer, including, where this is contractually required, the application of pay rises subsequently agreed with those unions.
Step Four: inform and consult affected staff
The responsibility for consulting and informing affected staff rests with the old employer but we will be required to participate in the consultation exercise being led by that employer. We will need to provide the information detailed in Step Three above and we will want to ensure that this information is accurate.