The application of TUPE whether on a business sale, outsourcing of services, or on an insolvency remains one of the most challenging areas of employment law that employers have to deal with.
Despite the 2006 TUPE Regulations attempting to make outsourcing and second generation contracting more straightforward, thre remain real difficulties with its application, particularly in relation to service provision changes, resulting in a lot of case law.
The new TUPE Amendment Regulations (introduced on 31 January 2014) have introduced a number of miscellaneous changes designed to make life easier for employers. On the whole these amendments have had a positive impact.
Common problem areas include:
- dealing with transferees who refuse to accept that TUPE applies and therefore won’t accept the transfer of any employees;
- on a loss of a contract which is fragmenting to more than one transferee; attempting to assess whether TUPE applies and, if so, which employees should transfer and to whom; and
- on a contract win, identifying which employees should legitimately be transferring in from the transferor who in turn might be using the loss of the contract to off-load surplus staff to the transferee.
Having won a contract, any TUPE’d employees need to be assimilated into the new business. This may lead to ETO redundancies (an economic, technical or organisational reason entailing changes in the workforce) and consideration of how terms and conditions might be changed, mindful of course, that any attempt to harmonise terms and conditions is likely to be void under TUPE if they are by reason of the TUPE transfer.
On a business sale it is important to make sure that any employment warranties and indemnities contained in the sale and purchase agreement are reasonable. For the purchaser, any potential employment liabilities need to be assessed – for example, the unwritten bonus scheme, or generous pension and permanent health insurance arrangements.
On large scale business sales or outsourcing contracts there is often the prospect of the transferee needing to make wholesale ETO redundancies (i.e. more than 20 employees) post transfer. Historically any collective redundancy consultation and dismissals would need to wait until the transfer was complete. With the changes to the Collective Consultation regime coming into effect on 31 January 2014, transferees are more likely to want to start Collective Redundancy Consultation pre-transfer. This changes the dynamics of how the parties will have to work with each other in appropriate cases, both on simultaneous TUPE and Collective Redundancy Consultation.