I am the HR manager of a business which is being sold. A number of our employees are transferring under TUPE and I have been told to provide the buyer with employee liability information. How do I handle it?

First of all, I am assuming that the transfer is happening in NI. This is important because we operate a separate TUPE regime to England & Wales. Here, you are required to share employee liability information (“ELI”) in writing no less than 14 days before the transfer – it’s 28 days in England & Wales.

The information you must provide the buyer (or “transferee”) is outlined at Regulation 11 of TUPE. The aim of ELI is to provide the buyer with an overview of the transferring employees and any potential issues. You will have to gather and provide:

1. The identity and age of each employee;
2. The statutory particulars of their employment;
3. Information on any formal grievances or disciplinary action within the last two years;
4. Information on any court or tribunal claim from an affected employee against you within the last two years;
5. Information on any claim which you have reasonable grounds to believe an employee may bring against the buyer as a result of their employment with you; and
6. Any collective agreements which may affect the transfer.

The “particulars of employment” mentioned are those required under the Employment Rights (NI) Order 1996. You will have to provide a number of details for each affected employee:

1. Name;
2. Job title or brief job description;
3. Date of commencement;
4. Pay rate and pay date;
5. Hours of work;
6. Holiday entitlement;
7. Location;
8. Any sick pay arrangements;
9. Notice periods;
10. Information about disciplinary and grievance procedures;
11. Any collective agreements;
12. Pension and pension schemes;
13. If employment is permanent or its fixed term length; and
14. Any entitlements (whether contractual or non-contractual).

Hopefully, this is information which you already record. Otherwise, it will require a review of the contracts for each affected employee. We recommend collating all the information on one spreadsheet, which is clearly marked as being for the purpose of ELI.

One potential issue is the requirement to share details of any entitlements. This will include, for example, the contractual right to private healthcare. Recent case-law has also considered the relevance of non-contractual entitlements. You should be prepared to take a broader approach than relying strictly on the contracts – which is also worth remembering if any employees are working under terms which no longer represent the reality of their employment relationship.

Keep in mind that if you fail to provide the requisite information within the time-limit, or if the information provided is defective or lacking, the Tribunal is empowered to order compensation to the buyer under Regulation 12. This can be costly with the sum awarded usually beginning at £500 per affected employee.

With the right preparation and advice, your ELI should be robust enough to withstand any later challenge.