TUPE or not TUPE, that is the question!

OK, it’s a rather ham-fisted variation of one of my favourite Shakespearian quotes, but that doesn’t make it any less important or relevant.

TUPE is a question that often comes up when we’re advising clients who are buying or selling businesses – it relates to whether staff are being transferred from one entity to another, and if so, on what terms. It’s a big and important question, worthy of even the Bard’s intellect!

One of the areas of consideration is what staff are being transferred and what happens if they object to the transfer.  We are often advising the buyer on whether they actually want any of the staff, and if not, what their obligations are.  Or we’re advising the seller on what to do with staff that they are left with, or that they don’t want to part with, but the buyer wants to be transferred over.

These are all things that can be resolved by negotiation.

When things become more complicated, it’s not a like-for-like transfer. For example, if those being transferred are now going to be working in substantially different (inferior) working conditions, what are the rights of those employees and what will happen in practice? Does the buyer have to take them on, on better working conditions, and if so, do their existing staff have the right to insist that their conditions are improved? Or does the seller have an obligation to keep the staff and make them redundant at their expense?

The answer, as always, is that it depends on the facts of the situation.  However, whilst I can’t tell you exactly what the answer is (and whether it will be a happy ending, or like most Shakespearian tragedies, will everyone die in the end) I can give you ideas and suggestions that might help you reduce any liability and speed up the transition smoothly.

If you’re the employee being transferred, then like all good actors, timing is everything and the sooner you take action to protect your position, the better.

Either way, make sure you take legal advice at the earliest opportunity.

Kleyman & Co Solicitors. The full-service law firm. Tastier than a ham sandwich!