Where a transfer of a business takes place which retains its identity and the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) apply, this can bring with it issues with complying with the TUPE Regulations, particularly if an employer does not want an employee to transfer over to them.
Richard owned and ran five nurseries and was in the process of buying another existing nursery, which he intended to run in the same way and he had been informed that the TUPE Regulations would apply to the transfer. Under these Regulations, Richard was provided with ‘Employee Liability Information’ from the transferor owner. As part of this information, it detailed the disciplinaries taken against employees within the previous two years. Richard noted that there was one particular employee that seemed to have numerous disciplinary actions taken against her for different reasons and because of this, he really did not want this employee to transfer over to him.
Before Richard took any action he sought employment law advice on the issue. The advice was where there is a TUPE transfer; employees who were employed by the transferor immediately prior to the transfer are automatically employed by the transferee from the instant the transfer takes place, irrespective of their disciplinary record in the previous two years. Therefore, the Regulations did not provide for Richard to be able to pick and choose who he wanted to transfer over to him.
Richard was advised that if he refused to transfer and accept this particular employee, then the employee could consider themselves as dismissed. In addition, if this employee had longer than two years’ service, then the employee could bring a claim of unfair dismissal at the Employment Tribunal against Richard. Furthermore, even in the event the employee does not have two-years’ service, they may still be able to bring other claims at an Employment Tribunal which do not have the length of service requirement, such as discrimination, as they could potentially try and argue that the ‘dismissal’ was because of certain protected characteristic, such as disability. The employee could also bring a claim for wrongful dismissal – i.e. for failing to pay them for a notice period.
Therefore, when dealing with legislation such as TUPE, in order to ensure your compliance, it is always best practice to seek advice before acting in order to limit liability for Employment Tribunal claims made in relation to these types of Regulations.