A Practical Guide to TUPE and Employee Transfers - Core Legal Principles, Tricky Issues and How It Really Works in Practice

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) can have a significant impact on the broader commercial aspects of a corporate transaction, outsourcing or re-tendering process. If it applies, it will usually result in the automatic transfer of employees (and liabilities associated with them) from one employer to another. It provides protection from dismissal and restricts the new employer's ability to change employment terms. It imposes strict requirements to share employee information and a duty to inform and consult with representatives of affected employees.

Written in straightforward, user-friendly language, this book demystifies the core legal principles which underpin TUPE and explains how they are applied in practice. It offers clear guidance to employers and their advisers on how best to achieve their business objectives, even where these may be inconsistent with how TUPE works.

Dominic explains complex issues such as when TUPE applies to sub-contractor relationships and insolvency scenarios; its impact on pension rights, restrictive covenants and share incentives; and how to manage cross-border transfers or multi-jurisdictional projects. He deals with the emerging UK and European case law on fragmentation (and the extent to which an individual's employment may transfer to two or more new employers).

There is also comprehensive guidance on how the potential impact of TUPE applying (or not applying) can be managed effectively. Dominic looks at a wide range of commercial provisions that may be negotiated by the parties to deal with TUPE and employment-related liabilities. He explores how a TUPE scenario might be approached differently by each of the parties involved, whether they are seeking to inherit, transfer out, retain or dismiss employees - or where they are a third-party customer seeking to manage the potential transfer or otherwise of employees from one service provider to another.

This is an essential companion for employment law practitioners, in-house lawyers, procurement specialists and HR professionals who want to enhance their understanding of how TUPE operates in the real world.

ABOUT THE AUTHOR

Dominic Holmes is a Partner at Mishcon de Reya. He is known for his straightforward, commercial approach to complex employment law issues and has over 17 years' experience in advising employers on the legal and practical implications of TUPE across a range of sectors, both within the UK and in the context of multi-jurisdictional projects. He has supported businesses on TUPE issues in matters as varied as global outsourcing exercises, intra-group transfers of undertakings, the sale of businesses out of insolvency and TUPE-related litigation.

CONTENTS

1. TUPE: Introduction and Overview

Part A: Does TUPE Apply?

2. Transfer of an Economic Entity

3. Service Provision Changes

4. Public Sector Transfers

5. Sub-Contractors

Part B: Basic Protections

6. Automatic Transfer of Employees

7. Automatic Transfer of Rights and Liabilities

8. Terminating Employment

9. Changing Terms of Employment

Part C: Tricky Issues

10. Fragmentation

11. Trade Unions and Collective Agreements

12. Pensions

13. Insolvency

14. Bonuses, Incentives and Benefits

15. Restrictive Covenants

Part D: TUPE Processes

16. Employee Liability Information

17. Information and Consultation Obligations

Part E: TUPE in Practice

18. Negotiating Commercial Agreements

19. International Transfers

20. Managing a TUPE Project

21. Outsourcing: Commercial Checklists

Postscript: TUPE Post-Brexit: What Next?