TUPE And The Duty To Disclose ‘Employee Liability Information’

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) protect the employment rights of employees when their employer changes as a result of the relevant transfer of a business or a part of one or when there is a service provision change – for example when a contract is assigned to a new contractor following re-tendering.

The TUPE Regulations introduced a new duty on the transferor to supply specific information about the transferring employees to the new employer by providing what is termed ‘employee liability information’. This must be given at least two weeks before the completion of the transfer unless this is not reasonably practicable. The information that must be provided is:

  • the identity of the employees who will transfer;
  • the age of those employees;
  • information contained in the statements of employment particulars for those employees;
  • information relating to any collective agreements which apply to those employees;
  • instances of any disciplinary action within the preceding two years taken by the transferor in respect of those employees in circumstances where the statutory dispute resolution procedures applied or, from 6 April 2009, where the ACAS Code of Practice on disciplinary and grievance procedures applied;
  • instances of any grievances raised by those employees within the preceding two years in circumstances where the statutory dispute resolution procedures applied or, from 6 April 2009, where the ACAS Code of Practice on disciplinary and grievance procedures applied; and
  • instances of any legal action taken by the transferring employees against the transferor in the last two years and details of any potential legal actions which may be brought by those employees where the transferor has reasonable grounds for believing that such action might occur.

The information must be provided in writing or in a form which is accessible to the new employer. It is advisable for the transferor to consult with the transferee to discuss the method to be used.

If the transferor does not comply with this duty, the transferee can make a complaint to the Employment Tribunal (ET). If the ET finds in favour of the new employer, it has the power to award compensation for any loss incurred because the information was not provided. The level of compensation will normally be no less than £500 for each employee for whom information was not provided or for whom the information given was defective, unless the ET rules that it would be unjust or inequitable to award this default amount.

Failure to comply with the TUPE provisions can be very expensive for businesses and it is important to take advice at the earliest possible stage of the transfer process.

The material contained in this article is provided for general purposes only and does not constitute legal or other professional advice. Appropriate legal advice should be sought for specific circumstances and before action is taken.

© , October 2009

Please contact:

Emmanuelle Ries

DD +44 (0)20 7553 9938

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