How to comply with the law on dismissal of employees in relation to TUPE transfers

Authors: Laurence O'Neill and David Faulkner

Summary

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• Understand the information and consultation obligations that apply in a TUPE situation.
• Be aware of the circumstances in which the dismissal of an employee in a TUPE situation will be automatically unfair.
• Understand which employer will be liable for any dismissals and negotiate indemnities to cover costs arising out of the transfer, including potential compensation to dismissed employees.
• If considering a dismissal in the context of a TUPE transfer, identify the reason for the dismissal and be aware of the relevance of whether it is because of the transfer and whether it is for an economic, technical or organisational reason.
• When making a redundancy dismissal in the context of a transfer, follow the rules on general fairness, including carrying out a fair selection process and taking steps to avoid redundancies.
• Comply with the duty to consult collectively on redundancies, if applicable, in addition to the duty to inform and consult under the TUPE Regulations.
• Consider whether it is appropriate for the transferee to carry out pre-transfer consultation with staff who are due to transfer.
• Follow a fair procedure when carrying out dismissals that are unrelated to the transfer, for example where a disciplinary process is ongoing at the time of the transfer.