Guide to TUPE obligations and timeline for the outgoing employer

1. Affected employees?

You must identify which employees are “affected” by the transfer.

“Affected” employees will include the transferring employees and any employees who are not transferring but whose roles will be affected as a result of the transfer.

2. Recognised Trade Union?

If you recognise a trade union in respect of all affected employees, you will not need to arrange for the election of employee representatives.

The union reps are automatically nominated as the “appropriate” reps for the purpose of the old employer's information and consultation obligations (see 6, 7, and 8 below).

3. No recognised Trade Union?

If you do not recognise a trade union at all, you will need to arrange for election of employee representatives (see 4 below), or in the case of micro business (fewer than 10 employees) consult directly with affected employees.

Remember, if a trade union is only recognised in respect of some of the affected employees, employee reps will need to be elected for the remaining affected employees in respect of whom there is no such union recognition.

4. Election of employee reps

You will need to arrange for the election of employee reps if applicable as follows:

• Determine how many employee reps you will require (approx 1 rep to 5 employees).
• Invite all affected employees to stand as candidates.
• Hold simple ballot if there are too many candidates for the number of reps required.

5. Employee Liability Information (ELI)

You must send to the new employer the ELI in respect of each transferring employee no later than 28 days before the transfer.

6. “Inform” the reps

You must send to the union reps or employee representatives the mandatory written TUPE information required.

If there were no candidates for employee reps, or employees are being consulted and informed directly, written TUPE information must be sent directly to all affected employees.

7. Mandatory formal consultation

You must consult with the appropriate reps (with a view to seeking their agreement) about any measures which you are proposing, and which might impact on any of the affected employees. (It is unusual for the old employer to propose any such measures so this consultation is uncommon).

Mandatory formal consultation can be considered with voluntary consultation on wider issues (see 8 below).

8. Voluntary informal consultation

Although not required by the TUPE legislation it is good practice to hold “informal” consultation meetings with reps and affected employees to clarify the key issues surrounding the transfer e.g. the reasons for the transfer, the effect on contracts, the preservation of benefits etc.

You may wish to consider inviting representatives from the new employer to participate in these informal meetings to answer questions raised by the transferring employees.

The new employer could use this time to explain the likely impact on any measures it is proposing, and also to begin formal redundancy consultation if redundancies are proposed following the transfer.