TUPE—what pension benefits should the transferee provide?
Produced in partnership with Sarah Greenwell of Walker Morris LLP
TUPE—what pension benefits should the transferee provide?

The following Pensions practice note produced in partnership with Sarah Greenwell of Walker Morris LLP provides comprehensive and up to date legal information covering:

  • TUPE—what pension benefits should the transferee provide?
  • Considerations relevant to determine level of pension provision post-TUPE transfer
  • What benefits are provided for the transferring employees immediately before the TUPE transfer?
  • Identifying pension rights that transfer to the transferee
  • Statutory requirement to provide minimum level of pension benefits
  • Which transferring employees does the pension protection requirement apply to?
  • When does the pension protection requirement apply?
  • Nature of the pension protection requirement
  • Disapplying the pension protection requirement
  • Practical considerations
  • More...

A transfer from one entity (the transferor) to another (the transferee) may occur under the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE) in a number of circumstances, including:

  1. on a business sale

  2. at the beginning or end of an outsourcing

  3. on an internal restructuring within an employer's group (where a change in employer takes place)

  4. on a management buy-out, or

  5. on the creation or termination of a franchise

Considerations relevant to determine level of pension provision post-TUPE transfer

When deciding what pension benefits a transferee employer must offer to the employees who transfer to it, the transferee must consider what minimum pension benefits it is legally required to provide the transferring employees with. This will depend on a number of factors:

  1. whether the pension protection provided by the Pensions Act 2004 applies—for further information, see Statutory requirement to provide minimum level of pension benefits, below

  2. auto-enrolment requirements—for further information, see Impact of the auto-enrolment regime, below

  3. the extent to which the pension rights of the transferring employees transfer from the transferor to the transferee—for further information, see Identifying pension rights that transfer to the transferee, below, and

  4. other considerations

In the context of a business sale, the cost of meeting the minimum requirements which the transferring employees have to be provided with may affect the price that the buyer is willing to pay

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