In February 2008, the UK Border Agency (UKBA) guidance changed its approach to the document-checking obligations on a TUPE transfer. Previously, the buyer could rely on any checks carried out by the seller prior to the transfer. However, buyers now have a “grace period” of 28 days after the transfer to carry out the checks themselves.

A number of questions arise: should the buyer should carry out the checks that applied at the time that each individual was employed or those that applied at the time of the transfer?

How to be sure you are not liable: If you are a transferee (the buyer) you should ask the transferor (the vendor) whether he has made complete checks under the Act. To save your bacon, consider negotiating warranties and indemnities to be included in the transfer document. This is especially important where the transferor is unable to provide requisite information and documentation relating to transferring employees right to work legally in the UK.

Clearly, the guidance is not sufficiently detailed - it does not specify what checks a buyer should make on employees that it has acquired as part of a TUPE transfer. Since then, the Home Office has stated that buyers do not need to make individual document checks on employees as long as they can show that they were acquired as part of a TUPE transfer. It has not incidentally, made any changes to the UKBA guidance.

·        TUPE letter to employee: sale of business

·        TUPE letter to employee: contracting out

·        Business sale agreements: including appropriate warranties and indemnities