TUPE

TUPE

The TUPE Regulations seek to protect employees’ rights if they are transferred to a new employer. This area of employment law can be particularly difficult to navigate for the unfamiliar, not least because of the ever-evolving case law. Kate has significant experience in resolving TUPE disputes, negotiating TUPE related warranties and indemnities and managing TUPE related claims.

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Commercial agreements

There are a number of TUPE related warranties and indemnities which are negotiated in advance of a TUPE transfer. Depending on whether your organisation is transferring employees (transferor) or receiving employees (transferee), it is important that you do not agree to overly onerous provisions as part of the commercial agreement. Kate can draft or negotiate appropriate warranties and indemnities on a number of issues including the payment of accrued but unused holiday pay, “woodwork employees” (i.e. those unexpected employees who you are made aware of after the transfer) and liability for claims.

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TUPE disputes

It is not uncommon for parties to dispute that TUPE applies, or accept that TUPE applies but disagree on the employees who are to transfer. Kate has many years’ experience in negotiating and resolving such disputes and is aware of the common tactics used by employers to “offload” unwanted employees as part of a TUPE transfer. As parties are often working to tight timescales when TUPE is concerned, it is important to seek advice sooner rather than later if you have concerns.

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Changes to terms and conditions

In the context of a TUPE transfer, the ability to change employees’ terms and conditions is limited, even if the employees consent to the variation. Kate can guide you through the limited exceptions under the TUPE Regulations if you need to make changes to employees’ terms and conditions.

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Obligations to inform and consult

Parties have a duty to inform (and if appropriate), consult employee representatives in advance of a TUPE transfer. If the business employs fewer than 50 employees, (irrespective of the size of the transfer) or the proposed transfer involves fewer than 10 transferring employees, the employer may consult the employees directly rather than the employee representatives (who may be recognised trade union representatives or elected employee representatives).

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TUPE in an insolvency context

Please seek further advice if you are a business facing insolvency proceedings, or are considering purchasing a business which is subject to insolvency proceedings. Depending on the type of insolvency proceedings and timing of the transaction, limited insolvency exceptions apply to encourage the “rescue” of businesses that are or are likely to become insolvent.

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Claims

If you require further advice on the merits and value of potential TUPE claims, please get in touch. Kate has significant experience in representing employers both during early conciliation proceedings and at employment tribunal.

Call Kate today on
07549894819

Grievance procedures

A grievance can be any concern, problem or complaint that an employee raises with their employer. How the parties approach a grievance can heavily influence the outcome. If an employer responds aggressively or dismissively to a grievance, matters can quickly escalate with the aggrieved employee feeling even more aggrieved. It is therefore important for both parties to keep an open mind, for the employer to fully investigate the employee’s concerns and for the employee to be willing to consider the employer’s perspective.

Objectivity in a grievance process is often critical, which is why Kate is regularly instructed to investigate grievances on behalf of clients. Kate also advises clients on the following:

  • Handling grievances during a disciplinary procedure.
  • Managing vexatious or malicious grievances.
  • Grievances raised about the handling of without prejudice discussions or pre-termination negotiations.
  • Grievances after employment has ended.

Kate also covers the above issues in her grievance investigation training. If your HR teams or managers could benefit from refresher training on how to conduct grievance investigations, please get in touch.