Employment issues linked to business restructuring.
Restructuring your business could involve a business transfer and/or the outsourcing of services and it is important to consider how TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006) could impact on this.
We are able to provide practical advice on the potential impact of TUPE and to formulate a strategy to minimise any potential employment liabilities.
The main consequence of TUPE is that existing employment contracts and employment rights and liabilities are automatically protected and transfer under TUPE.
Employees should also be consulted with and informed about any TUPE transfer. A failure to run a proper TUPE process could result in costly compensation awards and claims under the TUPE legislation.
If your business is acquiring new employees as a result of TUPE, it is key to have the right information at hand so that risks can be fully assessed. We can help you with this due diligence process and to ask the right questions. We can also assist with drafting warranties and indemnities in sale/business transfer documentation to protect your interests as much as possible.
At the time of or following a TUPE transfer, it may be that you do not wish to retain some employees. We can advise you on the potential risks and issues around unfair dismissal and settlement agreements where needed.
Changing terms and conditions of employment on a restructure
Changes to employment contracts may be needed on a restructure as a result of a TUPE transfer or outside of TUPE where adjustments to roles or pay are needed.
Under TUPE, there are limitations to being able to change terms and conditions of employment and more generally, employees need to consent to changes to employment terms to avoid breach of contract claims.
We can advise on how to agree to a variation of contractual terms, review contracts of employment and identify the potential associated risks with harmonising terms and conditions of employment following a TUPE transfer.
Redundancy is a potentially fair reason for dismissal where a redundancy rationale stacks up. However, employers need to be aware of the possible pitfalls including a failure to run a fair redundancy consultation process using objective selection criteria and pooling where necessary.
Consultation requirements could change depending on the number of redundancies proposed over a 90 day period as it may be necessary to run a collective redundancy process as well as individual consultation. If you are considering dismissing between 20 and 100 employees, the consultation process must be at least 30 days. This increases to a minimum of 45 days if over 100 employees are at risk of redundancy and employers must consult with employee representatives.
We are here to help you plan a legally compliant redundancy consultation exercise. We can provide scripts and template letters for your employees and be available in the background to deal with any issues which could arise during the consultation process.
A fair process could be crucial in avoiding not just potential unfair dismissal claims, but also potential discrimination issues.