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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

Acquired Rights Directive may apply even if significant tangible assets do not transfer in asset-focused business

09 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.

Contract

Transfer-related contractual changes void even if beneficial for employees

09 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.

Contract breaking up is never easy

Employment contract of transferring worker can be split between transferees

09 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.

employment

Transferee not party to TUPE claim should appeal to EAT for suspension of re-engagement order

09 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.

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.

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