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Topic: Changing terms & conditions and TUPE

TUPE provision of proposed measures letter
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TUPE provision of proposed measures letter

TUPE provision of proposed measures letter

If you’re the transferee in a TUPE transfer situation, you must provide the transferor with information about what measures you intend to take in relation to affected employees who are to transfer to your employment. The transferor needs this information to be able to inform and consult with the appropriate representatives.

Information and consultation obligations

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) provide a right for recognised trade unions or elected employee representatives (“appropriate representatives”) of the affected employees to be informed and consulted about an impending TUPE transfer by the transferor. One of the pieces of information that must be disclosed in writing by the transferor to the appropriate representatives as part of their duty to inform and consult is any measures, in connection with the transfer, that they envisage the transferee will take in relation to any affected employees who will become employees of the transferee after the transfer or, if no measures are envisaged, that fact. Our TUPE Provision of Proposed Measures Letter is intended to be sent by the transferee to the transferor. It establishes initial contact with the transferor and advises them that you’ll be contacting them shortly to request provision of the employee liability information that they’re required to notify to you at least 28 days before the transfer - see our TUPE Employee Liability Information Request Letter. It also then goes on to set out written confirmation of your intended measures, if any. These might include matters such as changes to place of work or pension arrangements or potential redundancies.

Liability

Regulation 13 of TUPE requires the transferee to co-operate with the transferor here, as it states that the transferee must give the transferor such information at such a time as will enable them to perform their duty to inform and consult in this regard. In addition, liability for failure to inform and consult on this specific matter can transfer to the transferee where they fail to comply with their obligation to provide information to the transferor about intended measures, and the transferor can show that it wasn’t reasonably practicable for them to comply in turn with their duty. So, don’t overlook the provision of this information where you’re the transferee. It’s also important for you to take part in the transferor’s information and consultation processes if you can, so our letter asks that you be allowed to attend the consultation meetings with the appropriate representatives and that you be supplied with copies of their consultation documents. This is because transferor and transferee are jointly and severally liable for any compensation payable as a result of a failure to inform and consult, so it’s in your interests (as transferee) to make sure it’s done properly.

Timing

You can use our letter in both a business transfer situation and in relation to a service provision change. It should also be one of the first letters you send out as you need to make early contact with the transferor and they also need details of your intended measures to be able to constructively inform and consult with the appropriate representatives at an early stage.

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