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Topic: Changing terms & conditions and TUPE

TUPE employee liability information letter
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TUPE employee liability information letter

TUPE employee liability information letter

On a TUPE transfer, the transferor is obliged to notify to the transferee in writing the “employee liability information” of any employee who is assigned to the undertaking that is the subject of the transfer. Our letter enables a transferor to do this.

TUPE provisions

Under Regulation 11 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), a transferor must provide to the transferee in writing, or in another readily accessible form, what’s known as the “employee liability information” which relates to any employee who is assigned to the undertaking that is transferring to the transferee. The information that must be given is:

  • the identity and age of the employee
  • the written statement of employment particulars required to be given to the employee under Section 1 of the Employment Rights Act 1996
  • information about any collective agreement that will have effect after the transfer in relation to the employee
  • information about any disciplinary or grievance procedure taken within the previous two years where the Acas Code of Practice on Disciplinary and Grievance Procedures applies
  • information on any court or tribunal case, claim or action brought by the employee against the transferor within the previous two years, or any court or tribunal case, claim or action arising out of the employee’s employment with it that the transferor has reasonable grounds to believe that the employee may bring against the transferee.

What our TUPE Employee Liability Information does is ensure that all of the above information is provided to the transferee and we’ve done this by enabling the requisite documentation providing the relevant information to be attached to the letter. The transferor must provide the employee liability information no later than 28 days before the transfer. It’s acceptable for the transferor to give notification in more than one instalment and indirectly through a third party. Once the employee liability information has been provided, the transferor is then under an obligation to notify the transferee in writing of any change in this information, so our letter also covers this point.

Data protection

The legal obligation to provide employee liability information overrides data protection obligations to keep information about employees confidential. However, it’s still good practice for the transferor to obtain formal assurances from the transferee that it will safeguard the information and not misuse it in any way. Therefore, our letter also sets out some basic confidentiality requirements (including return of the employee liability information if the TUPE transfer doesn’t go ahead and an indemnity for the transferor in the event of breach by the transferee) and it asks the transferee to sign and return a copy of the letter in acceptance of those terms.

Remedy for breach

The penalty for failure to notify (or notifying inadequate) employee liability information is not less than £500 per employee in respect of whom the information was not provided, so overlooking this requirement on the sale or other transfer of a business, or on a service provision change, could prove very costly.

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