How to deal with the provision of employee benefits following a TUPE transfer

Authors: James Green and Adrian Martin

Summary

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• When dealing with an incoming transfer of staff under TUPE, understand the relevance of whether employees' benefits are contractual, discretionary or a combination of the two.
• Identify the terms and conditions of transferring employees and the package of benefits to which they are entitled.
• Aim to negotiate adequate protection through warranties and indemnities in any commercial documentation.
• Identify those contractual benefits that must be provided following the transfer and, in good time before the transfer, make arrangements to continue to provide those benefits post-transfer.
• Identify any discretionary benefits that need not be provided following the transfer.
• Identify any benefits that the business cannot provide and consider whether to amend or withdraw them or to provide equivalent benefits.
• Communicate details of any proposals to amend or withdraw benefit provision to the transferor as part of the obligation to identify measures for the purpose of TUPE information and consultation.
• Identify any commercial and legal risks that may arise from proposals to amend or withdraw particular benefits.