Transfer of rights and liabilities

Produced by Tolley in association with Dr John McMullen, Partner, Stone King LLP and Visiting Professor of Law, Durham University

Employment Tax

Guidance

Liabilities in relation to transferring employees

Following a TUPE transfer, the transferee acquires:

•
all rights, powers, duties and liabilities under or in connection with the contracts of employment of transferring employees
•
liability for all pre-transfer acts and omissions of or in relation to the transferor in respect of transferring employees or their contracts of employment

SI 2006/246, reg 4(2)

Most employment terms are protected by TUPE. Transferring employees retain continuity of service for determining eligibility to claim unfair dismissal, statutory redundancy payments etc. They also retain their existing terms and conditions, except those relating to old age, invalidity or survivors' benefits under occupational pension schemes.

In addition, the transferee inherits liability for all acts or omissions by the transferor (or an earlier employer) in relation to transferring employees, except for criminal liabilities (eg health and safety offences). These could include:

•
personal injury claims
•
discrimination claims
•
arrears of wages

The transferee also inherits the right to claim

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Dr John McMullen

Partner at Stone King LLP , Employment Tax

Dr John McMullen is a Partner at Stone King Solicitors LLP, United Kingdom, and a Visiting Professor of Law at Durham University. He has over 25 years of experience in employment law and is noted as being both a strategic thinker and leader in his field as well as being a practical hands-on lawyer. By peer acclaim he is one of the leading lawyers in the UK with national and international reputation.John is regarded as the leading expert in the UK on Transfer of Undertakings and he also has an international reputation in that field. He is the author of Business Transfers and Employee Rights, the leading work on transfers which also contains a chapter on transfer law and practice in Ireland along with his new book, Redundancy: Law and Practice. As well as being a writer and commentator on Mergers and Acquisitions and out-sourcing he advises the public, private and third sectors on the subject of staff transfers. This includes wide experience in mergers and acquisitions, out-sourcing, franchising and complex re-structuring.An all-round employment advisor, he is an editor of Harvey on Industrial Relations and Employment Law. He is an expert on the contract of employment and corporate governance in relation to employment issues.

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Transfer of rights and liabilities

Transfer of rights and liabilities