Is a transferee able to rely on assurances from the transferor that it carried out the necessary checks on the transferred employees' immigration status, or must it carry out its own checks?
The Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) and the Immigration, Asylum and Nationality Act 2006 are silent on the obligations of transferees that inherit employees in the event of a TUPE transfer to check the right of those employees to work in the UK. However, the Home Office guidance An employer's guide to right to work checks states that employers that acquire staff as a result of a TUPE transfer are provided with a grace period, which runs for "60 days from the date of the transfer of the business to correctly carry out fresh right to work checks in respect of those TUPE employees acquired".
Therefore, as civil liability for negligently employing illegal workers could be incurred from the point of transfer, a transferee needs to ensure that the necessary checks are carried out within 60 days of the transfer and should not rely on assurances from the transferor that it carried out the checks.
A transferee should also consider seeking a warranty and indemnity cover from the transferor in respect of liabilities incurred to the point of the transfer, and should carry out appropriate due diligence regarding the processes that the transferor had in place to prevent illegal working.