HR considerations
UK employment law and best practice
This template is designed to support the process, but the document should be used alongside the relevant HR procedure and applied to the circumstances of the individual case.
TUPE information requirements
Under TUPE, appropriate representatives of affected employees must be informed about the transfer and specified matters relating to it. Where measures are envisaged in connection with the transfer, the appropriate representatives must also be consulted about those measures. In certain circumstances, employees may be informed and consulted directly under the provisions applying to smaller employers and certain smaller transfers. https://www.legislation.gov.uk/uksi/2006/246/regulation/13
Direct information to employees
Where employees are being informed directly, employers should provide clear and understandable information about the transfer and any relevant proposed measures. Direct communication should not be used to avoid representative consultation where TUPE requires consultation with appropriate representatives. https://www.acas.org.uk/inform-and-consult-staff-in-a-tupe-transfer
What are measures?
Measures can include changes that the employer envisages taking in connection with the transfer. Examples may include changes to working arrangements, workplace location, organisational structures, payroll processes, systems or other arrangements affecting employees. https://www.acas.org.uk/inform-and-consult-staff-in-a-tupe-transfer/what-you-must-inform-and-consult-about
Information should be provided in good time
Information should be provided early enough to enable employees or their representatives to understand the proposed transfer and consider any measures being proposed. The timing will depend on the circumstances and should allow the information and consultation process to operate effectively. https://www.acas.org.uk/inform-and-consult-staff-in-a-tupe-transfer/when-to-inform-and-consult
Consultation
Where TUPE consultation is required, the employer should consult with a view to seeking agreement about the measures envisaged. Consultation should be genuine and should provide an opportunity for views and alternative proposals to be raised and considered. https://www.acas.org.uk/inform-and-consult-staff-in-a-tupe-transfer/how-to-inform-and-consult
Transferor and transferee responsibilities
Both the transferor and transferee have responsibilities under TUPE. The transferor must provide affected employees' representatives with information about measures the transferee envisages taking, while the transferee has its own obligations to provide the transferor with information needed to fulfil its TUPE duties. https://www.legislation.gov.uk/uksi/2006/246/regulation/13
Changes to proposed measures
Proposed measures can develop as information becomes available and consultation takes place. Where material changes arise, employers should consider whether further information or consultation is required and ensure affected employees and representatives are kept appropriately informed.
Failure to inform or consult
Failure to comply with TUPE information and consultation requirements can result in compensation being awarded to affected employees. The maximum award can be up to 13 weeks' uncapped pay for each affected employee. https://www.acas.org.uk/inform-and-consult-staff-in-a-tupe-transfer/if-an-employer-does-not-inform-or-consult
Best practice
Employees should receive information in plain, accessible language and should have a clear opportunity to ask questions. Employers should avoid making unnecessary promises about proposals that may still be subject to consultation and should ensure that communications are consistent with information provided to employee representatives.