Deal with the situation where the transferee disputes that TUPE applies
Key points
In order to refute it, the transferor employer will need to gain a clear understanding of the reasoning behind the transferee employer's argument that TUPE does not apply to a business transfer or service provision change.
The most effective tool that the transferor can deploy to persuade the transferee to proceed on the basis that TUPE applies is likely to be the potential liability that the transferee will have, including liability for automatically unfair dismissals, if it transpires that TUPE does apply.
Regardless of the transferee's position, the transferor should proceed with its TUPE obligations, including the duty to inform and consult and the duty to provide employee liability information to the transferee.
Where the transferee appears unlikely to change its position, there are measures that the transferor can consider taking to reduce the impact of the situation on the affected employees, including looking for alternative roles in its organisation for them after the transfer.
