I know that I have to provide information relating to the staff who are going to transfer under TUPE, but the transferee organisation is asking lots of questions about the other staff. I’m being made to feel that they have a right to this information but I’m not sure if they do or not. I thought that the responsibility for identifying the staff who will transfer belongs to the transferor, but the transferee is asking for information that makes it look as though they want to decide who should transfer and who shouldn’t.
In some transfers there will be disagreement or confusion about whether or not the transferor is choosing to not include some employees on the Employee Liability Information to the potential detriment of the transferee. This can lead to disputes about how the employees on the list are being identified and the rationale being used. A request for information relating to people working in a transferring business or service that are not proposed to transfer can be an attempt to challenge the information provided.
One of the concerns that transferees will often have is that in compiling the Employee Liability Information a transferor is engaging in ‘cherry picking’ by retaining the best staff or ‘lemon dropping’ in deliberately trying to transfer out poorer performers. It is against this background that transferees may request information about those staff who the transferor is suggesting will not transfer.
There is no requirement in law for a transferor to share information of staff who are not transferring. It is legitimate however to talk to a transferor about how the Employee Liability Information list has been arrived at the rationale for decisions. Rather than get involved in detailed exchanges of written information it is usually better to meet the transferee and talk through any concerns that they have. This process can be helped by the use of organograms if they exist or other organisational information that helps the transferor to understand how the service or business is currently delivered.
It is also the case that a transferor may often try and insist on a named employee or employees to be transferred as a condition of the business transfer agreement. It is important in these cases to remind people who are involved in these discussions, many of whom may only have a limited knowledge of Tupe, that a correct application of the regulations will produce a list of employees and that list cannot be amended arbitrarily. It is possible that, in parallel to a Tupe transfer, other individuals can take up employment with the transferor but that will be outside of the Tupe process and be between the individual and the transferor. The transferee will not have a role in that.