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TUPE employee liability information is not limited to contractual particulars of employment

The EAT has decided that the employee liability information (ELI) that a transferor must provide under TUPE does not have to specify whether an employee's entitlements are contractual or not. This is because the requirement to provide particulars of employment does not distinguish between contractual and non-contractual matters and TUPE does not alter that position. As a consequence, inaccurately stating that a bonus was non-contractual in the ELI did not breach TUPE.

Transferees should therefore undertake appropriate due diligence, including, for example, investigation into any supposedly non-contractual entitlements, and make contingencies as necessary. From a transferor's perspective, whilst there might not be any sanction under TUPE for inaccurately labelling a bonus as non-contractual, there might be penalties in the transfer agreement or, in a service provision change situation, in the outsourcing agreement with the client. In addition, some inaccurate statements in ELI might yet amount to a breach of the ELI requirements. This might occur, for example, if the transferor inaccurately stated the amount or method of calculation of a bonus entitlement as opposed to whether it was contractual or non-contractual.

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