Q&As

If, following a relevant transfer under TUPE 2006, it transpires that the transferor has wrongly treated an employee as having opted out of the automatic enrolment pension provisions, can the transferee bring a claim against the transferor for loss arising from the transferor’s failure to provide accurate employee liability information in this regard?

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Published on LexisPSL on 18/10/2019

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • If, following a relevant transfer under TUPE 2006, it transpires that the transferor has wrongly treated an employee as having opted out of the automatic enrolment pension provisions, can the transferee bring a claim against the transferor for loss arising from the transferor’s failure to provide accurate employee liability information in this regard?
  • Employee liability information
  • Liability for failure to provide ELI
  • Auto-enrolment
  • The effect of TUPE 2006 on the transferee’s auto-enrolment duty

On a relevant transfer under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246, employees retain their existing terms and conditions, except certain rights relating to old age, invalidity or survivors’ benefits under occupational pension schemes, which are excluded from the scope of the automatic transfer principle.

For further information, see Practice Note: TUPE—transfer of rights and liabilities—Liabilities in relation to transferring employees.

The transfer of rights and liabilities with regard to workforce pension provision on a transfer under TUPE 2006, SI 2006/246 is a complex and involved area of the law, and it may be appropriate to seek specialist pensions law advice.

You may wish to consider:

  1. the obligation to provide employee liability information (ELI)

  2. potential liability for failure to provide ELI

  3. the auto-enrolment requirement

  4. the effect of TUPE 2006 on the transferee’s auto-enrolment duty

Employee liability information

In addition to any information provided as part of due diligence disclosure agreed between the parties, TUPE 2006 requires the transferor to notify the transferee of specified ELI.

The information to be provided in respect of each transferring employee is:

  1. their identity and age

  2. the particulars that an employer is obliged to give an employee pursuant to section 1 of the Employment Rights Act 1996 (ERA 1996)

  3. any collective agreement which will apply to them after the transfer

  4. any disciplinary procedure taken against, and any grievance procedure

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