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M&A, Outsourcing & TUPE

Understanding and correctly applying TUPE is a critical part of the process of buying and selling businesses, outsourcing and internal group reorganisations.

Our specialist TUPE group has a wealth of experience advising on such matters including providing expert M&A employment support, drafting and negotiating suitable legal protections and assisting our clients to manage risk and find commercial solutions to contentious employment transfers. 

As employees become more aware of their rights, the risks of not managing these situations appropriately are steadily increasing and can be magnified significantly where large numbers of employees are involved. 

We have particular expertise in the following areas:

  • advising both customers and vendors on the employment aspects of outsourcing tenders
  • drafting and negotiating both market standard and bespoke warranties and indemnities including to cover multi-jurisdictional acquisitions and outsourcings
  • undertaking buyer and vendor employment due diligence and advising on pre-sale reorganisations
  • providing expert opinion on the applicability of TUPE including identifying who is correctly in scope to transfer
  • scripting and training both employers and employee representatives in meeting their consultation obligations
  • legislative reform in relation to TUPE and expert analysis of TUPE case law
  • TUPE-equivalent legislation in overseas jurisdictions
  • effecting post-transfer redundancies and harmonisation of employment terms
  • advising on the special rules applicable to insolvent businesses
  • dealing with TUPE’s effect on pensions and other benefits
  • managing TUPE litigation in the Employment Tribunal

We work closely with clients and provide transactional support both to our own M&A colleagues and to other law firms.

Related items

Employee liability information is not limited to contractual matters

25 September 2017

The Employment Appeal Tribunal (“EAT”) has ruled that the employee liability information (“ELI”) that a transferor is required to provide under regulation 11 of TUPE is not limited to contractual entitlements. In addition, the EAT decided that there is no obligation on the transferor to set out whether any entitlement is contractual or not.

Service provision changes – determining principal purpose of organised grouping

25 September 2017

The EAT has given guidance on the correct approach to determining the “principal purpose” of an organised grouping of employees within the meaning of the service provision change (“SPC”) rules under TUPE.

Automatic transfer of employees applies on ‘pre-pack’ sale

25 September 2017

The European Court of Justice (“ECJ”) has confirmed that, in the event of a “pre-pack” sale aimed at rescuing all or part of an insolvent undertaking as a going concern, EU transfer of undertakings law requires that the employees automatically transfer. This is consistent with the position in the UK under TUPE.

Continuous service for notice pay preserved on transfer

22 September 2017

The European Court of Justice (“ECJ”) has considered an interesting TUPE issue concerning continuous service, arising in a case referred by the Swedish Labour Court.

Bid to object to transfer fails because TUPE did not apply

22 September 2017

The High Court has considered an employee’s attempt to escape a lengthy period of garden leave by objecting to a TUPE transfer when his employer was going through a change in ownership. This was a creative attempt by the employee to avoid his contractual notice obligations, but he ultimately failed due to the lack of one key ingredient - a TUPE transfer.

Test for ‘old-style’ transfer of economic entity requires multifactorial approach

08 March 2017

The Employment Appeal Tribunal (“EAT”) has ruled that an employment tribunal, in finding that the termination of a franchise agreement gave rise to a relevant transfer under TUPE, made the mistake of focusing on one particular factor and failing to adopt a multifactorial approach assessing all the relevant circumstances.

Confirmation that collectively agreed terms are ‘static’ for transferring employees

08 March 2017

In two joined cases referred to the European Court of Justice (“ECJ”) by the German Federal Labour Court, an Advocate General (“AG”) has handed down an advisory opinion on the effect of a TUPE transfer on employment terms governed by a collective agreement.

Activities fundamentally the same despite alterations to location and scope of service

01 March 2017

The Employment Appeal Tribunal (“EAT”) has upheld an employment judge’s decision that a service to provide accommodation-based support services for homeless people had remained fundamentally the same before and after a TUPE service provision change (“SPC”), despite alterations to the location and scope of the service.

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