If a TUPE transfer results in redundancies, which employer is responsible for the redundancy process and payments?
The effect of TUPE is that employees transfer automatically to the transferee employer, whether or not that employer needs them or wants to keep them on. If the transfer results in a redundancy situation, eg where the transferee has more employees than it needs to carry out the work, it is the transferee employer that is responsible for carrying out the redundancy process and making redundancy payments. Depending on the circumstances, a fair redundancy procedure may require the transferee to include employees from its existing staff in a redundancy pool with the transferred employees.
Any dismissal by the transferor before the transfer would be automatically unfair where the reason for the dismissal is the transfer and it is not an economic, technical or organisational (ETO) reason for dismissal. To dismiss employees fairly, the transferor must have an ETO reason of its own; it cannot rely on the fact that the transferee will not require the employees following the transfer. Liability for the unfair dismissals in these circumstances would transfer to the transferee.