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.
Employees’ contracts can be split so they transfer to multiple employers on a TUPE service provision change10 March 2021
In the case of a TUPE transfer when a service is outsourced or re-tendered, the Employment Appeal Tribunal has ruled that an employee’s contract can be split so they go from working full time for one employer to working part time for two or more.
M&A employment law support - top ten questions19 November 2020
In mergers and acquisitions (M&A) navigating the legal requirements and ramifications of the deal can be tricky.
Acquired Rights Directive may apply even if significant tangible assets do not transfer in asset-focused business09 September 2020
In a German case, the European Court of Justice (ECJ) has considered whether the EU Acquired Rights Directive could apply to the transfer of an asset-focused business where significant tangible assets did not transfer due to legal, technical or environmental constraints.
Transferee not party to TUPE claim should appeal to EAT for suspension of re-engagement order09 September 2020
The Court of Session (CS) in Scotland has ruled that a transferee who had not been a party to the original Employment Tribunal (ET) claim, but had a re-engagement order made against it, could only seek the suspension of that order by appealing to the Employment Appeal Tribunal (EAT). The transferee could not apply directly to the CS to have the order suspended.
Transfer-related contractual changes void even if beneficial for employees09 September 2020
The Employment Appeal Tribunal (EAT) has ruled that the provision under TUPE which renders contractual variations void if they are made because of the transfer applies to changes that are advantageous as well as detrimental to employees. On the facts of the case, this meant that owner-directors who had made significant improvements to their own employment terms before a TUPE transfer could not enforce these against the transferee.
Employment contract of transferring worker can be split between transferees09 September 2020
In a transfer of an undertaking involving multiple transferees, the European Court of Justice (ECJ) has ruled that under the EU Acquired Rights Directive (ARD), the employment contract of a transferring worker can be split between each of the transferees.
Insolvency and TUPE21 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 TUPE28 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.