Certain information (p.B the reason for the transfer and the planned course) must be provided to representatives sufficiently in advance of the transfer so that the transferring employer can consult them on the matter. While the duty to provide information always arises, the duty to consult only arises if an employer intends to take action against affected employees. Employees who are employed in the transferred company receive their employment with the new employer. Employees may refuse the transfer (or „object“), but depending on the circumstances of the case, they may lose valuable legal rights if they do. TUPE states that „all rights, powers, obligations and liabilities of the assignor arising out of or in connection with the employment contracts of the transferring employees are transferred to the assignee“. This comprehensive concept includes rights under the employment contract, legal rights and continuity of employment, and includes the right of employees to sue their employer for unfair dismissal, dismissal or discrimination, unpaid wages, bonuses or leave and personal injury. If workers in Spain do not have designated representatives, they must find another representation. The employer who leaves the employer is required to provide the new employer with written information about the transferred employees, including identity, age, employment details, disciplinary and complaint records, employee rights and collective agreements, and any related rights and responsibilities that are transferred. This information must be provided at least 28 days before the transfer, although in practice the new employer will endeavor to receive this information much earlier. If you have or want to hire employees in the UK or the European Union, you need to familiarize yourself with TUPE to make future transitions as smooth and compliant as possible.
Failure to comply with any of these requirements may result in an organization appearing before an employment court, which can have detrimental consequences both financially and reputationally. If more workers are affected, the impact of a TUPE court can undermine the entire transaction. Penalties vary depending on the violation of the TUPE regulations. Failure to disclose employees „to the extent“ of the transfer may result in a fine of £500 per person. If your company transfers a group or investment to another country, do your employees need to be informed as part of TUPE? The answer is no. In all countries under TUPE, neither employees nor their representatives have to accept the transfer. According to the regulations, the new employer is legally required to hire the company`s existing employees. The general terms and conditions and obligations of your employer in your employment contract are automatically transferred to your new employer, with the exception of pensions – see below.
If there is a collective agreement, your new employer must continue to abide by its terms and conditions until it expires or is replaced. The recent Labour Court decision in dewhurst and Others v. Revisecatch & City Sprint ruled that the protection afforded to workers by the Business Transfer (Employment Protection) Ordinance (TUPE) should also be granted to persons classified as employees. Finally, TUPE is made more flexible to protect incoming employers if the departing employer is insolvent. Responsibility for dismissals, layoffs and certain other payments to employees is not transferred to the incoming employer. In case of agreement with the union or employee representatives, the terms and conditions of employment (without ETO) can be changed if the change is aimed at rescuing a failing company. The idea is that companies will be more inclined to „save“ insolvent companies, securing jobs where inherited liabilities are not as heavy. When the new company resumes the work of its predecessor, it must take over the employees (of the old company) according to their existing conditions. This can lead to a situation where the „transferring“ employee can be made on improved terms compared to an employee who is already employed in the new company.
Harmonization of conditions between the two groups of workers is generally not possible, as the „reason“ would be the TUPE transition, which (except in certain circumstances) is expressly prohibited. .