TUPE imposes obligations on both the outgoing employer (transferor) and the incoming employer (transferee). Failing to comply can result in tribunal claims from affected employees and financial liability for both parties.
Outgoing Employer (Transferor) Obligations
Provide Employee Liability Information
The outgoing employer must provide the incoming employer with specified employee information at least 28 days before the transfer. This includes:
- Identity and age of transferring employees
- Written statement of employment particulars
- Details of any disciplinary or grievance actions in the last two years
- Details of any legal actions in the last two years (or that may be anticipated)
- Details of any collective agreements
Inform and Consult
The outgoing employer must inform and consult representatives of affected employees about the transfer (see below).
Continue to Employ Until Transfer
The outgoing employer must continue to employ the affected employees up to the transfer date. Dismissing employees to make the transfer more attractive is automatically unfair.
Incoming Employer (Transferee) Obligations
Accept the Transfer
The new employer inherits all transferring employees with their existing terms and conditions. They cannot cherry-pick which employees to take or impose new terms.
Preserve Terms and Conditions
The new employer must honour the employees' existing contractual terms, including pay, benefits, working hours, and holiday entitlement. Changes linked to the transfer are void unless there is an ETO reason.
Recognise Continuity
Length of service transfers. An employee who has worked for the outgoing employer for five years has five years' service with the new employer immediately after the transfer.
Joint Obligation: Inform and Consult
Both employers must inform and consult representatives of affected employees. The information provided must include:
- The fact that the transfer is happening and the proposed date
- The reasons for the transfer
- The legal, economic, and social implications for affected employees
- Any measures the employer envisages taking in connection with the transfer
If there are no measures planned, the employer must still inform employees and confirm that no measures are envisaged.
Failure to Comply
Failure to inform and consult can result in a tribunal award of up to 13 weeks' pay per affected employee. Failure to provide employee liability information can result in a minimum award of £500 per employee.
Our TUPE guidance service supports both sides of the transfer. Contact us for specialist advice.