You may also have heard of it if you are looking to sell your nursery. So what is it and what does it mean for you as an employer? Jacqui Mann explains.
The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) protects employees' terms and conditions of employment when a business is transferred from one owner to another. When a business changes hands. employees of the previous owner automatically become employees of the new employer on the same terms and conditions
So if you are looking to buy or sell a nursery along with equipment, customers, staff and goodwill, then TUPE would normally apply.
All employees employed at the nursery are covered by the law. All permanent employees would transfer to the new owner with their existing terms and conditions of employment, and their continuity of service is also preserved.
Employees can refuse to transfer to the new employer. If they do, it would be seen as a resignation and not redundancy.
INFORMATION AND CONSULTATION
As the owner you have a responsibility to consult with employees at the earliest possible time. Failure to consult may result in liability for payment of compensation which may be up to 13 weeks' pay for each employee. The owner and new employer are both liable for any award of compensation for failure to inform and consult.
If there are no trade union or employee representatives, then representatives must be elected by the affected employees for the purposes of consulting over the transfer. The employer must arrange the election process.
You must provide the following information to the employees or their representatives:
- that a transfer is to take place
- the reason for the transfer and when it is to take place
- the implications for the employees
- the measures the employer expects to take in relation to the employees
- the measures the new employer expects to take in relation to employees.
If there are any changes or proposals for changes following the transfer, these are known as 'measures' and must be discussed with the employees or their representatives. The incoming employer is required to provide the outgoing employer with information on proposed measures to allow the former to comply with its duty to inform and consult.
You can't afford to get this wrong. So if you are thinking of buying or selling a nursery, seek advice either from HR specialists or a solicitor.
Jacqui Mann is managing director of HR4Nurseries.