Invitation to nominate as employee representative in TUPE situations

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), where a relevant transfer of an undertaking takes place, those employees who are employed by the transferor employer, e.g. the seller of the business, immediately before the transfer automatically become the employees of the transferee employer, e.g. the buyer of the business, from the time of the relevant transfer, on the same terms and conditions of employment that they previously enjoyed with the transferor employer. The exception is that special rules apply to the transfer of occupational pension scheme rights.

When to use letter

The law imposes far-reaching obligations on employers to inform and consult with appropriate representatives about proposed TUPE transfers. Use our Invitation to Nominate as Employee Representative in TUPE Situations where you are the transferor employer, to invite affected employees to nominate employee representatives where there is no recognised trade union and no current employee representatives who have authority to act for this purpose, as part of your obligations to comply with the information and consultation rules. Affected employees will be any employees who may be affected by the transfer or by measures taken in connection with it. Micro-businesses with fewer than ten staff are permitted to inform and consult with their employees directly where there is no existing recognised trade union or employee representatives.

Election rules

The statutory election rules provide:

• the employer shall make such arrangements as are reasonably practical to ensure the election is fair
• the employer shall determine the number of representatives to be elected so that there are sufficient representatives to represent the interests of all the affected employees, having regard to the number and classes of those employees
• the employer shall determine whether the affected employees should be represented either by representatives of all affected employees or by representatives of particular classes of those employees
• before the election, the employer shall determine the term of office as employee representatives so that it is of sufficient length to enable relevant information to be given and consultations to be completed
• the candidates for election as employee representatives are affected employees on the date of the election
• no affected employee will be unreasonably excluded from standing for election
• all affected employees on the date of the election are entitled to vote for employee representatives
• the employees entitled to vote may vote for as many candidates as there are representatives to be elected to represent them, or, if there are to be representatives for particular classes of employees, for as many candidates as there are representatives to be elected to represent their particular class
• the election will be conducted so as to secure that, so far as is reasonably practicable, those voting do so in secret and the votes are accurately counted.

Our letter covers all this information and allows you to propose how many representatives there will be and whether they will represent the interests of all affected employees or whether they will be divided up by department/location.