TUPE request for details of proposed measures letter

Use our letter to ascertain what measures the transferee envisages taking in relation to affected employees in a TUPE transfer situation - you’ll need this information to be able to inform and consult with the appropriate representatives.

Information and consultation obligations

The  Transfer of Undertakings (Protection of Employment) Regulations 2006  (TUPE) provide a right for recognised trade unions or elected representatives of the affected employees to be informed and consulted about an impending TUPE transfer. You are required to consult with the “appropriate representatives” of employees affected by the transfer. For the purposes of consultation, as the transferor, you must disclose in writing the following information to the appropriate representatives long enough in advance of the transfer to enable you to consult with them: (a) the fact the transfer will occur; (b) the proposed transfer date; (c) the reasons for the transfer; (d) the legal, social and economic implications of the transfer for the affected employees; (e) any measures that you or the transferee envisage taking in relation to the affected employees in connection with the transfer (or, if no measures are envisaged, that fact); and (f) suitable information relating to your use of agency workers (if any). It is the fifth of these that is the focus of our TUPE Request for Details of Proposed Measures Letter intended to be sent by a transferor to a transferee.

Envisaged measures

If you are the transferor, your written information needs to include details of any measures, in connection with the transfer, that the transferee envisages taking in relation to any affected employees who will become employees of the transferee after the transfer - or, if none, that fact. Clearly, you are only going to have that information available if you actually ask the transferee for it. Fortunately, Regulation 13(4) of TUPE requires the transferee to co-operate here, as it provides that it must give you such information at such a time as will enable you to perform this information provision duty. So, our letter asks the transferee to provide written details of any such measures that it intends to take, or alternatively, if there are no such measures, to provide written confirmation of that fact. You can use our letter in both a business transfer situation and in relation to a service provision change. It should also be one of the first letters you send out in a TUPE transfer situation - as soon as the identity of the transferee is certain - as you need this information at an early stage to be able to inform and consult with the representatives. The transferee’s reply to our letter will then enable you to supply the relevant information to the representatives using our Letter Inviting Consultation in Accordance with TUPE.

Is it necessary?

You should ensure this letter is sent even if you think the transferee is unlikely to reply or where there are apparently no measures being taken. This is because liability for a failure to comply with the TUPE consultation obligations will transfer to the transferee where it fails to comply with the obligation to provide information about envisaged measures, as requested in our letter, such that it’s not reasonably practicable for you to comply in turn with your obligations.