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Virgin: Employee Fact sheet: Transfer of Undertakings (TUPE)

4 October 2012

TUPE Guidance for members in Virgin West Coast Trains

 Rights, Duties and Responsibilities

· Employees have the right to be represented in the information and consultation process by trade union representatives or employee representatives elected for this purpose.

· If the employer does not comply with its information and consultation obligations, the employees’ representative can apply on their behalf to an employment tribunal for a protective award of up to 13 weeks’ actual pay (uncapped) per employee.

· If an employee does not want to be transferred, he or she can object to the
transfer. If the employee does object, his or her employment will end at the point of the transfer and he or she will not have any entitlement to receive payment in lieu of notice or any redundancy payment, since the employee will not have been dismissed.

· After an employee is transferred to a new employer, the employee will be entitled to receive the same contractual terms of employment as before the transfer, except in relation to occupational pension benefits.

· A transferred employee has the right to be offered equivalent pension benefits (up to certain limits) where he or she was, or was eligible to be, a member of an occupational pension scheme operated by the old employer.

· An employee’s continuous service will not be broken when his or her employment is transferred under TUPE to a new employer.

· If the new employer makes changes to an employee’s contractual terms and
conditions because of the transfer, these changes will not be effective unless they are for an economic, technical or organisational reason entailing changes in the workforce and have been agreed with the employee.

· Employees have the right to not be dismissed because of the transfer, unless the employer has an economic, technical or organisational reason for the dismissal entailing changes in the workforce.

· If an employee has an outstanding claim or potential claim against his or her old employer, the liability for this will transfer to the new employer when he or she transfers.

· If all of the employees affected by the transfer are not already represented by a recognised trade union, it will be necessary to appoint employee representatives for information and consultation purposes. An employer must hold an election for this purpose.

· If an employee chooses to object to the transfer, he or she must inform either the old or new employer, preferably in writing, before the transfer occurs. (There is, however, no obligation to do this in writing.)

The following are examples of approaches for a transferor (Virgin) to adopt in a transfer situation:

· Confirm that what will be transferred, in the “standard” definition, is an economic entity and that therefore TUPE will apply.

· Inform the prospective transferee of this.

· Understand the definition of a Service Provision Change and its implications — inform the prospective transferee.

· Provide the transferee with any employer liability information.

· Inform and consult with the employees to be transferred, those employees who will otherwise be affected by the transfer and their appropriate representatives.

· Reassure the employees to be transferred that, under TUPE, their contracts of employment will remain intact and their continuity of employment will be preserved.

· Remind the employees that a refusal to be transferred to the new employer on unchanged terms and conditions may well amount to a resignation and they will not therefore be entitled to enforce their statutory rights.

· Inform the employees that should the transferee employer dismiss them or refuse to engage them, any liability for unfair dismissal compensation and/or redundancy payments fall to the transferee.

· Recommend that in order to establish their contractual rights, they must report for work with the transferee employer on the day of the transfer or the first working day immediately thereafter, as they would have with the transferor if no transfer had taken place.

· Make sure that the transferee is aware of the transferor's application of this procedure.

The following are considerations for a new employer (transferee):

· Identify all of the transferring employees employed in the undertaking or part of the undertaking.

· Inform and consult all employees who may be affected by the transfer.

· Seek clear evidence of any objection to transfer by the transferor's employee.

· Carry out a comprehensive check of all terms and conditions of the transferring employees.

· Look out, in particular, for terms relating to occupational pension schemes, salaries, bonuses, commissions, holidays, contractual sick pay, maternity/paternity/adoption leave and pay arrangements, redundancy procedures and payments, severance entitlements, collective agreements, past and current disputes with trade unions, company car policies, permanent health schemes, personal pensions scheme, mobility and flexibility terms, restrictive covenants, personnel and disciplinary procedures. Then find out whether the terms are contractual or non-contractual. 

Practical Guidance for Transferees and Transferors

· Seek warranties from the transferor that the disclosure of information about the transferring employees is true and accurate and that it has not failed to disclose anything that is significant and relevant.

· Seek indemnities from the transferor to cover possible liabilities arising from the transferor's acts or omissions pre-transfer.

· Liabilities, such as unfair dismissal claims, unlawful discrimination claims, arrears, claims of failure to inform and consult and legal costs, transfer to the transferee after a relevant transfer.

· Decide how to deal with personal injury insurance cover.

· Sort out what will happen with regard to matters such as accrued untaken holiday, PAYE deductions in respect of the period up to the transfer date, expenses claims and loans, bonuses dependent on the transferor's profits and share options.

Your Elected TSSA Company Council Staff Representatives are:

Keith Harris Mobile: 07792 550638


Gerry McMahon Mobile: 07500 447082


Peter Coventry Mobile: 07788 246286



Your full-time TSSA Officers are Vic Walsh and Lou George.

TSSA’s free phone help desk no for members only is 0800 328 2673


Your questions:

If you have any questions that you want advice about or that we may need to raise, please contact one of your Company Council Representatives or full-time officers.

We undertake to post answers and share responses with you.

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