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TUPE: Employee Liability Information - a reminder

Just a quick reminder that with effect from yesterday, the deadline for transferors to notify employee liability information (‘ELI’) to transferees increased from 14 to 28 days. 

The government had, in its January 2013 consultation paper, initially suggested it might repeal the requirement on transferors to provide ELI (the prescribed information set out in Regulation 11(2) of TUPE).  This proposal was based on the view that decisions on the ambit and exchange of employee information should be left to the parties.  However, following consultation, the government concluded that the obligation on transferors should remain, given that it provides businesses with appropriate certainty as to their obligations towards transferring employees.  However, there was an acceptance that the existing 14 day timeframe was too short, and therefore the deadline was brought forward to 28 days before the transfer.  There was a three month lead-in time for the change, which thus came into effect yesterday.

This undoubtedly assists in giving greater certainty earlier on in the transfer process.  However, ELI remains (in my ideal world, at least!) the last step in the information exchange process - proper provision of information at the outset of a sale/tender process, albeit in some cases on an anonymised basis, is critical to the parties’ understanding of the scope of a deal and the measures which may be required.  Any temptation simply to leave the entire data transfer to the ELI deadline will not aid a smooth transfer process, or positive relations between the contracting parties.  Interestingly, the government declined to expand the scope of the ELI requirements, despite widespread criticism about its adequacy, concluding that to do so would place too much of a burden on transferors.  That leaves much information which is highly relevant to transferees falling outside the scope of the ELI ambit, which thus still needs to be sought earlier in the transfer process.

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