In a TUPE situation, is the transferor obliged to give the transferee the personnel files of transferred employees?
There is no statutory requirement for the transferor to give the transferee the entire personnel files for transferring employees in a TUPE situation. However, as a minimum, under the TUPE Regulations 2006, the transferor must give the transferee certain "employee liability information", which will include information from employees' personnel files. The transferor must provide the employee liability information no later than 28 days before the relevant transfer.
Employee liability information includes the identity and age of the transferring employees; the information that must be included in their written statement of employment particulars; and details of any disciplinary procedures taken against, or grievance procedures taken by, them in the previous two years.
The transferor may be obliged to give further information about employees to the transferee if the transferee requests this as part of a due diligence exercise. When deciding what information to provide, the transferor should consider what is necessary for the purposes of the transfer and the transferee's business needs, bearing in mind the data protection principles. It may not be necessary to provide the whole personnel file of each employee.