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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

Employment

Insolvency and TUPE

21 May 2020

This Inbrief aims to guide you through the law on transfers of undertakings (TUPE) in the context of an insolvency, summarising the main employment considerations.

Tribunal finds that 'workers' transfer under TUPE

28 November 2019

In a surprise decision, with potentially wide-ranging ramifications, an Employment Tribunal (“ET”) has found that “workers”, as well as traditional “employees”, transfer under TUPE.

EU Acquired Rights Directive may apply to transfer of client investments to new firm

02 October 2019

In a Slovenian case, the European Court of Justice (“ECJ”) has considered whether the EU Acquired Rights Directive (“ARD”) applied to a situation in which a stock market intermediary ceased operations, but gave its clients the option to transfer their financial instruments and other managed assets to another named intermediary.

Employee entitled to long-term disability benefits after TUPE transfer

02 October 2019

The Employment Appeal Tribunal (“EAT”) concluded in a recent case that, following a TUPE transfer, an employee who was unfairly dismissed and suffered disability discrimination was entitled to compensation on the basis he would have been entitled to long-term disability benefits until death or retirement, had he not been dismissed.

Responsibility for pay information transfers under TUPE

02 October 2019

In a recent case, the Employment Appeal Tribunal (“EAT”) has ruled that the duty of an employer to keep and provide pay records under national minimum wage legislation transferred under TUPE from the transferor to the new employer.

Can restrictive covenants survive a TUPE transfer or are they TUPE’doed?

24 April 2019

“To be, or not to be: that is the question.” Many will know these to be Hamlet’s words early in the eponymous play. TUPE or not TUPE (with respect to restrictive covenants) is a thought that most buyers of a business have, but often too late in the day. What do these two have in common? Potentially tragic consequences.

Removal of outdated contractual entitlement following transfer was not void

09 April 2019

The Employment Appeal Tribunal (“EAT”) has upheld a decision that the removal of outdated contractual entitlements following a TUPE transfer was not void, as the sole or principal reason was not the transfer or a reason connected with the transfer

Pre-transfer dismissal was by reason of transfer and automatically unfair

09 April 2019

The Court of Appeal (“CA”) has upheld a decision that the dismissal of an employee immediately before a TUPE transfer was automatically unfair because the principal reason was the transfer. The CA rejected the transferee employer’s contention that the reason for the dismissal was personal to the employee’s circumstances and so unrelated to the transfer.

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