Does a final written warning on an employee file adjust after TUPE transfer?Posted in : Seamus Says - Employment Law Discussion on 5 April 2019
Does the level of a final written warning on an employee file adjust because of a TUPE transfer?
So, in this TUPE situation, details of an absence and live disciplinaries are communicated to the receiving company in advance of the transfer. Once the transfer takes place, does the warning level transfer?
For example, an employee has a final written warning on file for unauthorised absence due to expire in September 2019, but the TUPE transfer takes place in March 2019. If the employee has another unauthorised absence, say, in July of 2019, does it necessarily follow that the employee potentially faces dismissal, or does the level of warning adjust because of the TUPE transfer?
Seamus: This is an interesting question, and the reality is that there is an information and consultation process under TUPE. Articles 11 and 13 are the articles that cover for that. And all of that information relating to the employee, whether it is about, you know, the number of days absent that they've had, whether it's about grievances that they've raised, if they've got previous warnings, all that information should be provided by the existing employer over to the new employer, from the transferor over to the transferee. So that information, there's an obligation to provide that. And then that becomes within the knowledge of the new employer.
And they absolutely can rely on any previous warnings that have been given to the employees. It's not that you get a brand-new slate on TUPE whenever you transfer across, and you can say, "Well, you know, I haven't been a great employee at this point. I've got a final written warning, but now I've TUPE'd, I can forget about all of that. I've got another crack at the whip here". Certainly, the information is provided and the new employer can rely upon that.
And even if you turn that on its head, my thought process, whenever I was looking at it, was if there are grievances that an employee has raised, and notice of the grievances are provided, say that the personnel files are provided across on the information consultation process, it's really important that the new employer knows about those grievances.
If there have been instances of bullying/harassment that maybe have been founded, and the employee then raises with the new employer to say, "This has happened again", if you took the principle that it was a clean slate, that would have to work then also in the grievance side.
So you can understand why the law works the way that it does, and that those disciplinary matters are transferrable.
Scott: The law protects the employee so that their existing terms and conditions and everything that goes with that transfers, but that includes the bad as well as the good. And unfortunately, because you have continuity in employment, you also have continuity with all these disciplinaries. So under this question here, the employee could well face dismissal if their record doesn't improve.
Seamus: Absolutely. And I don't think there is an opportunity even for the new employer to say, "Well, look, you haven't breached our normal policy". You're working off the existing terms and conditions that the employer comes across on.
And trust me as well, another thought that I just had was . . . again, just going back to the good old regulations and the aspect of sort of personnel files getting transferred across during this information and then going on to the consultation, I suppose it's just worthwhile thinking about that. If you are in the existing company that the employees are moving across to, whenever you're providing information on the personnel file, you're only providing the relevant information. So it would be the likes of the live warnings and things that are contained within the file.
Scott: Well, that would be upfront to start with, because you've got a statutory requirement to do. So you'd have a right under GDPR to transfer this stuff, but you also have an obligation to transfer it all anyway once the transfer takes place. So presumably, you would justify passing those over. So you couldn't have an employee in this situation saying, "Oh, the GDPR stops you knowing what my warning is. You can't pass over to the new employer". They have a right to know about it.
Seamus: Yes. I mean, certainly, there's a clear situation that you have to pass it off. And there's a precedent in relation to that. I suppose that the other thing is that if you're looking at personnel records as the HR manager that's preparing for the transfer of the information, and there are DTOs going back to 20 years ago and maybe a situation where somebody's personnel information has changed in terms of their next of kin, maybe they've gone through a divorce and met someone else and things like that, you're not under GDPR providing the irrelevant information as well.
That was my thought process just in relation to that, because I had it last week. We were looking at personnel files, and I was thinking that so much of this is contained that is no longer relevant, and there is a potential breach of GDPR if it goes across. So just to flag that up.
Note: Legal Island is running a TUPE Update Northern Ireland half-day conference for HR professionals and employment lawyers on 13th June at the Grand Central Hotel, Belfast.
More on Transfer of Undertakings (TUPE)
- Variations in Terms and Conditions Following the Transfer of an Undertaking
- Brexit and European Court Case Law on Transfers: EU Retained Case Law: How Will It Work?
- The TUPE King’s Top Five Cases of 2020
- TUPE and Restrictive Covenants - Update from Dr John McMullen October 2020
- Ferguson v Astrea Asset Management Ltd 
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