TUPE employee liability information request letter

On a TUPE transfer, the transferor is obliged to notify to the transferee in writing the “employee liability information” of any employee who is assigned to the undertaking that is the subject of the transfer. Our letter enables the transferee to formally request this information in advance from the transferor.

TUPE provisions

Under Regulation 11 of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE), a transferor must provide to the transferee what’s known as the “employee liability information” which relates to any employee who is assigned to the undertaking that will transfer to the transferee. This information must be provided in writing or in another readily accessible form and it comprises:

• the identity and ages of the transferring employees
• the written employment particulars required to be given to the employees under Section 1 of the Employment Rights Act 1996;
• information about any disciplinary or grievance procedure instigated against or by any of the transferring employees within the previous two years where the Acas Code of Practice on Disciplinary and Grievance Procedures applies
• information about any court or tribunal case, claim or action brought by a transferring employee against the transferor within the previous two years, or any court or tribunal case, claim or action that the transferor has reasonable grounds to believe the employee may bring against the transferee arising out of their employment with the transferor
• information relating to any collective agreements which apply to the transferring employees that will have effect after the transfer.

Whilst the obligation is on the transferor to supply the relevant information (see our TUPE Employee Liability Information Letter), there’s nothing to stop the transferee making a formal advance request for it and so that’s exactly what our TUPE Employee Liability Information Request Letter does. As the transferor has to supply the information at least 28 days before the completion of the transfer, it’s important that you send out our letter early enough in the transfer process. You can then always send a chaser letter if nothing is forthcoming in response. Once the employee liability information has been provided, if any of it changes between the time when it’s notified and the completion of the transfer, the transferor must then give written notification to the transferee of the changes, so our letter also mentions this.

Data protection

The transferor’s statutory obligation to provide employee liability information overrides data protection requirements to keep employee information confidential. However, in the interests of ensuring the information is provided in a timely manner without any arguments, our letter gives the transferor some simple confidentiality assurances (including return of the employee liability information if the TUPE transfer doesn’t go ahead).

Remedy for breach

The penalty on the transferor for failing to notify (or notifying inadequate) employee liability information is not less than £500 per employee and, as an exception to the general rule that it’s only employees who can bring employment tribunal claims, the transferee would bring their claim against the transferor in the employment tribunal.