Q&A - Will TUPE regulations apply if I take over a business that has six employees?

Q: I run a small business which despite the financial crisis has been doing well. I now have the opportunity to take over a similar small business due to its owner retiring. As it only has six employees would it still be governed by TUPE regulations if I needed to make some staff redundant after taking on the business?

A:  The TUPE regulations will apply and any provision that purports to limit or exclude the rights of employees is deemed void.  However, recent changes that came into force on January 31st this year may be of some assistance to you.

If the transfer is taking place after 1 May 2014, the deadline for the current business owner to provide you with employee liability information has been extended from 14 to 28 days.  This will give you more time to weigh up your options. 

As the business has less than ten employees you would be able to inform and consult with the employees individually if there is no union or representative body already in place.

Perhaps the most significant change for you is that you, with the current employer's consent, will be able to carry out your redundancy information and consultation obligations with affected transferring employees before you actually become their employer. 

This answer comes with a significant health warning, however: the new law is uncertain and if you get this wrong, you could be on the receiving end of an automatic unfair dismissal claim.  A number of employment lawyers are struggling to see how the new law, which purports to widen the protection for employers in your position, will actually differ from the previous law in practice. 

The TUPE regulations are complex and it would be advisable for you to seek expert advice from a specialist employment solicitor prior to making any decisions or taking action.