TUPE—effect of insolvency
Produced in partnership with Gowling WLG
TUPE—effect of insolvency

The following Employment guidance note Produced in partnership with Gowling WLG provides comprehensive and up to date legal information covering:

  • TUPE—effect of insolvency
  • Types of insolvency proceedings
  • Categorising insolvency proceedings for TUPE purposes
  • Application of TUPE to different insolvency situations: government guidance
  • UK proceedings not treated as insolvency
  • Insolvency (with a view to liquidation)
  • Insolvency (not with a view to liquidation)
  • Non-transfer of debts and payments from the National Insurance Fund
  • Claims from the National Insurance Fund
  • Flexibility to vary terms and conditions

The Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE 2006) relaxes some of the rules which would otherwise apply, to make it easier to sell businesses that, at the time of the transfer, are subject to insolvency proceedings under the supervision of an insolvency practitioner.

For the proceedings to be under the ‘supervision of an insolvency practitioner’ there must have been a formal or informal appointment of someone in that role, simply acting in an advisory capacity is not sufficient.

There are two categories of supervised insolvency, each with different treatment under TUPE 2006:

  1. businesses subject to insolvency proceedings instituted with a view to the liquidation of the transferor's assets: these are exempt from reg 4 (transfer of employment, employee liabilities etc) and reg 7 (automatic unfairness for transfer-connected dismissals)

  2. businesses subject to insolvency proceedings instituted not with a view to the liquidation of the transferor's assets: (called 'relevant insolvency proceedings' in TUPE 2006) these benefit from reg 8(5) (non-transfer of certain employee debts) and reg 9 (increased flexibility to vary terms and conditions)

Otherwise, in both cases, TUPE 2006 applies as normal, ie:

  1. there is no exemption from the requirement to inform and consult employee representatives (although reg 13(9) provides a special circumstances defence to failure to perform fully the duty to inform and consult, where it is