Jane Fielding: Good morning, I am Jane Fielding and I am Head of the Employment Labour and Equalities Team here at Gowling WLG in the UK and I am delighted to welcome you to this the first in our series of webinars for our mid-year review of where things are in the world of employment law.
When we were planning these events we were considering going back to having them in person but now of course with the rail and the tube strikes in London today, we are very much patting ourselves on the back that we decided to stick with webinars this time round.
So our topic today for the first webinar is TUPE and specifically changing terms and benefits in a TUPE context. What we find when we are advising clients is that even those who work regularly with TUPE and are very experienced in it, still find this a frequent challenge so we thought it would be a good topic to focus on today and our speaker is Hannah Swindle, one of our Principal Associates and senior lawyers in the team who has a particular specialism in TUPE so she is very well placed to talk you through this topic today.
She is going spend about 25 minutes doing that and then we will have 10 minutes at the end for questions before we finish the webinar at 11.45 and it is my job to field the questions as they come in so we can take them at the end and also make sure that we do finish on time. If you want to ask a question please can you use the Q&A function which you will find on your zoom screen in the middle at the bottom. We may not have time to get to all of the questions but if you ask the question with your name attached we promise to come back to you by email after wards so you will get an answer at some point.
If you have any technical issues, hopefully you will not, but if you do please also use that Q&A function and Susie Barnes who is our technical support today will do her best to sort you out and get you back on track and at the end I will flag it again at the end but just to make sure we will circulate a short questionnaire by email for anybody who has attended. We would very much welcome your feedback. We do take it into account when we shape future sessions, so if you have two minutes we would very much appreciate you taking that time for us. So I will now go on mute and hand over to Hannah.
Hannah Swindle: Good morning everyone. Today I want to talk about a common issue that often arises in the context of a TUPE transfer for the incoming employer- which is the need to change a transferring employee's terms or working conditions of employment after a transfer.
The aim of an incoming employer is usually always to ensure a smooth and successful integration of transferring employees under TUPE. As employees transfer to the incoming employer on their existing terms and working conditions, this often gives rise to problems for the new employer as it is inheriting employees with terms that are significantly different to those of their existing employees.
It is quite common for the new employer to want to harmonise those terms and working conditions with its existing workforce- this might be for ease of HR administration or to prevent issues of perceived unfairness which can impact employee relations or result in potential equal pay issues for example. They may also need to change existing working patterns to fit into how they run their business, or it just may not be possible to replicate current benefit terms.
TUPE gives employees additional protections for their rights which introduce extra layers of complexity for employers wanting to make changes - on top of the usual limitations that are there around changing terms. This can make achieving a smooth integration more difficult and result in risk.
So today I'm going to recap on the protections TUPE gives, discuss the types of risks that can result from making changes and then look at some potential practical ways to help mitigate that risk. I have a couple of quick quiz questions part way through for everyone to take part in and as Jane says - we also take some questions at the end.
Before I make a start, I also want to mention that the same principles apply to both a business transfer or transfer of undertaking and a service provision change type of TUPE transfer , but most of my examples today concentrate on service provision changes as this is where a lot of the case law has arisen. I also want to mention that in the context of insolvency, there are some relaxation of the rules but we wont be covering those today.
Changing terms and conditions
So - as a quick recap - Under TUPE, the incoming employer will inherit transferring employees on all of their existing express and implied terms and conditions, working conditions which include employer policies and procedures, and with all contractual and discretionary benefits.
To be able to work out if any changes are needed, a new employer first needs to know what the transferring terms are - ideally as early as possible before the transfer.
Sometimes full employee information will be provided by the client in a tender process, especially where the outgoing employer is contractually required to give a full suite of employee information at an early stage before the transfer.
Otherwise, the incoming employer will have to rely on the minimum protections under TUPE. Under reg 11 - the outgoing employer is required to provide employee liability information 28 days before the transfer. amongst some other information transferring employees, this includes the particulars of employment that are required to be provided by s1 ERA 1996, and information about relevant collective agreements. It is not a comprehensive set of information by any means - and 28 days before the transfer is often too little too late - but it's better than nothing.
Contractual terms are protected by TUPE- which I'll go on to in the next slide.
If there are discretionary terms, the incoming employer has the same flexibility to make any changes the outgoing employer would have been able to make - but it is still important to consider employee relations issues when making significant changes and doing this without consultation can create risk. It is also possible that a discretionary term has become an implied contractual term through custom and practice so before changing anything you need to make sure you have looked at all the relevant factors carefully.
Permitted changes under TUPE
So - I next want to quickly recap on the protections under TUPE/
Any variation to a transferring employee's contract is void where the sole or principal reason for the change is the transfer unless certain specific circumstances apply.
Before changes were made to the TUPE regulations in 2014, the protections applied where changes were made 'in connection' with the transfer. At first glance it looks like there is a big difference between the reason being the transfer itself and the reason being connected with the transfer. But BEIS guidance suggests that actually - sole or principal reason can be interpreted as being 'connected' to the transfer under the old test so until this is tested in case law, it's safer to treat them in the same way and apply these protections to any changes which are transfer related.
This means that harmonisation in itself to bring the terms of the transferring employees in line with an existing workforce is not allowed, even if employees agree to the changes. But there are some limited circs where transfer related changes are permitted, I've put these on the slide:
The first one - changes can be validly made if the sole or principal reason for the change is an Economic, technical or organisational reason or ETO reason entailing changes in the workforce, and the employees agree.
to give a couple of examples that are included in the BEIS guidance- an economic reason might be where changes are being made to increase profitability, or a technical reason might be where the employer wants to use a different method of production. Alternatively an organisational reason might be where the management or organisational structure needs to change.
Importantly - if an employer has an ETO reason, this also has to entail changes in the workforce. In summary this means changes in job function or numbers, or a change in workplace.
so, the scope for an incoming employer to be able to rely on even a genuine ETO reason in order to make a valid change may be quite limited unless there is a larger workforce reorganisation. This is usually going to be very fact specific - and it's still difficult to have any certainty about whether the changes will be valid as I'll expand on later.
Changes can also be made where the employment contract permits them. This means the new employer can rely on existing contractual terms to make unilateral variations - such as a mobility clause. This is not without its pitfalls - as would be faced by any employer seeking to rely on a flexibility clause to push through changes. It must be exercised reasonably, and in a TUPE transfer employees also have added protection under Regulation 4(9) and 4(11) of TUPE which protect them where detrimental changes to their working conditions are being proposed - I'll go through this later.
Just to flag - these special protections don't apply to any changes unconnected with the transfer - for example, if they affect the entire workforce not just the transferring employees. If this is the case, then the usual rules around changing terms for an employee still apply.
By way of an example, In the case of Enterprise Managed services v Dance the EAT decided that post transfer changes to terms and conditions of transferring employees were not transfer related - instead they decided they were made as part of a wider reorganisation process, because they reflected successful pre transfer changes made to terms and conditions of the existing employees in order to improve productivity. However - as a note of caution- all the case law is very fact specific, so it is difficult to rely on previous case decisions to justify your own changes.
Clients often ask when the protections under TUPE run out. The short answer is that in the UK, they dont, although they do in some European jurisdictions. The passage of time by itself is not enough to mean that changes made will be valid. The key question is the reason for making them. Variations that took place several years after the relevant transfers have been held to be void because they were still made for a reason connected with the transfer. but - practically, the longer the time period passes, the more likely it is that an employer will be able to argue that the transfer is not the sole or principal reason for the change.
Replicating benefits
I mentioned at the start that an incoming employer may need to make changes because they can't provide the same benefits to transferring employees as those they currently have pre transfer. For example - an employee may have the benefit of share option schemes or staff discount schemes linked to the outgoing employer's business that it is just not possible for a transferee to provide in the same way after the transfer.
If an arrangement is non-contractual, there is no obligation on the new employer to provide the same or similar arrangement for transferring employees. However, even if an arrangement is stated to be non-contractual, it may have employee relations issue if it is just removed - or it might have become an implied contractual term by its regular use over a long period of time so this needs to be considered carefully.
If a benefit is a contractual right for transferring employees, it's a little more complicated to change it because of the TUPE protections around varying terms.
The EAT considered this issue in Mitie Managed Services Ltd v French. This case involved a contractual share scheme provided by the transferor - Sainsbury's. The EAT held that the transferred employees didn't have a right to participate in the same scheme after the transfer. Instead - they were entitled to participate in a scheme of substantial equivalence that was free from unjust, absurd or impossible features". Although it gives a solution, this causes its own problems as it is not clear how to measure equivalence. Practically it is going to require discussion and consultation with transferring employees - ideally before the transfer. If it's not possible to set up an equivalent scheme, the only other real option is to buy out those employees' rights. I'll talk more about the options for making changes later.
There are also important non legal considerations in changing benefits - whether contractual or discretionary - they may be an important part of the transferring employees' benefits package, so the employer needs to consider carefully how changing benefits will affect employee relations and how to make sure employees are reassured that substituted benefits are in fact equivalent.
I now want to mention collective agreements.
Any terms in a collective agreement that is not incorporated into an individual employment contract (and so is not enforceable) can be varied by the new employer -although they will have to be mindful of approaching the making of any changes in a careful way to avoid antagonising the unions or employees affected.
Where terms from a collective agreement have been incorporated into an employment contract, any changes that the employer wants to make will be subject to the same additional restrictions under TUPE, though TUPE contains a special carve out for collective agreements.
A new employer can make valid changes to any individual terms in a contract which have come from a collective agreement, provided they take effect once more than a year has elapsed after the transfer and also - any variations must be no less favourable than the employee's previous terms, when considered together as a package. This all sounds very helpful, but in fact there is no guidance as to whether this is a subjective or objective measure- so it is very ambiguous, and could lead to challenge later on. Also - please remember that any changes will need union agreement - so this could be an added blocker if they don't want to cooperate.
Poll
We will now have a quick POLL - to see if this is all crystal clear!
You should see a pop up box come up
The question to answer - Which of these is NOT a valid reason for changing terms and conditions post transfer?
The correct answer is 3. It's slightly sneaky as a relocation could be a valid reason for a change, as after the changes made in 2014, a change in workplace can be classed as an ETO reason but the point here is that the employees did not agree, which is also a requirement for valid changes.
Under no 1 - Changes can be made by TUPE if permitted by the contract- for example - a mobility clause.
The circumstances under the 2nd example are intended to describe changes unconnected with TUPE.
Risks and remedies
I next want to remind everyone in a bit more detail as to why this all matters, and flag up where risks can arise as this can all lead to unwanted cost and hassle.
First of all - any change that is not validly made under TUPE will be void - even if the employee agrees to it.
This means that the employer will not necessarily know if they have made a valid and enforceable change until it is challenged, and this could be many years later. Often, issues around changes would be raised in the context of an unrelated dispute - for example if the employee has raised a grievance about being treated unfairly, or maybe in the context of an unrelated redundancy process. Certain changes will only impact on termination of employment so can only be tested then - such as changes to restrictive covenants, or removal of enhanced redundancy pay.
This results in uncertainty for the employer. It might not matter if changes are only minor or has no financial loss for the employee - but if the change involves financial loss this could be a big problem. For example, where something like holiday entitlement, or overtime have been removed the losses that could be claimed would add up over the years resulting in a large breach of contract or unlawful deductions of wages claim. Losses could be significant, especially if a large number of employees are affected. In a similar way, removal of a PHI benefit could be very expensive if someone later becomes long term sick.
Often - the need for the ETO to entail workforce changes can also be problematic, even if the employer has a good ETO reason. It is often not commercially practical or desirable to make the wider changes required to constitute a change in the workforce - and to create them artificially would mean employees would be more unsettled and could cause greater employee relations issues.
Finally - a term you may have heard of is cherry picking: sometimes an employee will make changes by giving a new overall package of terms, some of which are beneficial and some are detrimental. There has been a case which is v helpful to employees - Regent Security services v Power - where the EAT confirmed that employees who are given a package of changes as a result of a transfer which both gives new rights and takes rights away - can cherry pick from the package after the transfer and choose to keep additional rights they have been given. The detrimental changes are unenforceable - leaving employers out of pocket. This decision reflects BEIS guidance which says that entirely positive changes are not prevented by TUPE. We now need to balance this against the EAT's decision in a later case [ Ferguson v Astrea Asset Management Ltd 2019 ] which said that the BEIS guidance could only be of limited persuasive value and that 'beneficial' changes are void if not validly changed under TUPE. - but this was a very particular case on its circumstances as it involved executives changing their own contracts more favourably pre transfer. I think it's likely that tribunals will still seek to protect employees in the event of any challenge so employers should still be aware of cherry picking, but it's clear that the two decisions have resulted in more uncertainty not less.
Reg 4(9) and Reg 4(11) protection
There is also a risk that if employees don't like the proposed changes, they can resign and bring a claim against the employer under the protections given by Reg 4(9) or Reg 4(11) of TUPE. They have the right to claim that the change is substantial and to their material detriment, or that it would constitute a fundamental breach of contract.
TUPE gives the employees additional protection so that the resignation would be treated as a dismissal and employees can claim it was either wrongful or unfair, depending on the particular protection they use.
Case law has confirmed that a Substantial change is a question of fact and degree in the circumstances and material detriment is something that is more than minor or trivial - but is subjective - the employee's view is important. Cases which involve these protections often involve a change in location that is required post transfer. Even a few miles can make a large amount of difference to a commute time which can be a big problem for those doing school or nursery drop offs for example.
It is often not clear cut where liability for any pre transfer resignations and claims under these provisions will rest - with the incoming or outgoing employer. Usually it will depend on whether the employee opts out of the transfer at the same time. The outgoing employer will not want to be responsible for claims arising out of changes proposed by the new employer, so any sale or outsourcing agreement will include a suitable indemnity to deal with this risk.
Importantly - and something to remember - the protection under Reg 4(9) in relation to a change in working conditions can apply even if the employer is validly relying on a flexibility clause in the contract, or if it is making a change to a discretionary and non contractual term.
Measures:
Finally, it's important to remember that any proposed change to terms and conditions of employment or working conditions, will be a 'measure' for the purposes of the information and consultation requirements of TUPE.
As a reminder - the incoming employer has to provide details of all measures as part of its duty under TUPE so the outgoing employer can consult about them.
There is no statutory definition of a 'measure' and its given a very wide interpretation - so it will be any action step or arrangement, even if it does not consist of a contractual change. This means that it is important not to forget about changes to the employer's policies or procedures or discretionary terms. Even if an employer is permitted to change them - it is still necessary to tell employees as they will be measures.
There's an incentive to do this right - the penalty for a failure to inform and consult is potentially 13 weeks' pay so a quarter of the wage bill. It is also important for employees relations purposes and ensuring that the new employer gets off on the right foot - it is good for the incoming employer to come in and talk to staff about their proposed changes so they can deal with concerns and hopefully head off problems at the start.
Although the main duty is that of the outgoing employer, they will usually look to bring in the incoming employer to any claim if any failure to inform and consult is due to the incoming employer's failure to provide measures.
We now have another poll. Which of these is not an option for the employee if the transferee or incoming employer proposes to make detrimental changes to pay post transfer
The correct answer is 3. The employee cannot refuse to work even if they don't like the changes - otherwise they will be in breach of contract which may entitle the employer to take disciplinary action.
The employee could choose to transfer and afterwards bring a claim for the deduction of wages. As a point to note - they could bring a breach of contract but if their employment is continuing it would have to be in the civil courts. A breach of contract claim can only be brought in the tribunal after termination so to do that they would also need to resign.
The employee could choose to resign before the transfer under reg 4(9) and 4(11) on the basis that the substantial changes were proposed which were to their material detriment or were a repudiatory breach of contract.
Ways to make changes and mitigate risk?
So - how can you handle this in practice?
It might be possible to argue that the changes are unconnected with the transfer. For example, if changes don't need to be made on day 1, it might be possible to link any changes to an individual's promotion or change in job role.
Otherwise, this might also work if you have a global reorganisation of the workforce and the proposed changes affect both transferring and non transferring employees.
ETO
If the changes are only going to affect the transferring employees it may be possible to rely on an ETO: if the incoming employer has a genuine economic technical or organisational reason which also entails changes in the workforce - in other words - a change in job functions or numbers. For example - there is a restructuring or redundancy process at the same time as a change in working hours to bring all employees onto the same shift pattern.
I've already highlighted the potential problems with this option - there is no certainty that a tribunal would enforce the change until a claim was brought and so an employer could face claims later down the line. However, if the changes are minor or don't involve potential financial loss for the employee, the employer may be willing to take this risk.
Beneficial changes only?
If an employer is only making changes that will be beneficial for employees then practically they won't really need to worry about enforceability.
I've mentioned recent case law which has confirmed that just because the terms are beneficial this will not mean that they are necessarily enforceable. However- in reality - if the changes are definitely positive- maybe a pay rise or introduction of an additional new benefit- then employees are clearly not going to challenge these at a later date.
Difficulties could arise where the change is made which looks beneficial - but an employee doesn't see it as such due to their own particular circumstances - for example where a new private medical scheme is put in place to replace an old one which gives greater benefits overall - it's not going to be seen as beneficial if the employee won't be able to take advantage of it, for example if they have a pre existing condition.
Package:
If employers are putting together a package of changes, employees may not be so likely to challenge individual terms later - but it is of course still open for them to cherry pick the ones they want to keep as I highlighted earlier.
If employees are being given a benefit in return for giving something else up, or if the employer is buying out a benefit - it won't be enforceable if an employee wants to back out later. One possibility to reduce the risk here is to ask the employee to enter into a clear contractual agreement that the new benefits or buy out are given on the condition that the entirety of the new package is accepted and if the employee tries to go back to their old terms they have to repay any sums or benefits given under the new terms.
This will be difficult to enforce unless a clear sum is allocated to the new term - and there has not been any case law confirming that this approach would be enforced. [Might be less likely following ferguson?] it is also necessary to be able to put back the old contract in its entirety which often will not be possible.
Dismissal and reengagement
Sometimes the employer needs more certainty around the change and if so one option is to dismiss employees and reengage them on the new terms. The employee is first dismissed and then offered new terms - also known as fire and rehire. The new 'employment' would be on the same terms except for the element that is being changed and continuity of employment would be preserved.
This is considered quite a heavy handed approach, can be expensive and must be handled carefully to reduce employee relations issues - for non TUPE changes this method has been highlighted recently in the press as being considered oppressive and is the subject of a new ACAS code. Importantly, this has to be carried out under a settlement agreement otherwise the dismissal will be automatically unfair as a result of other TUPE protections.
(I also wanted to flag here that my colleague Martin Chitty will be doing a webinar on fire and rehire on 29 June)
Settlement agreement -
Sometimes employers seek to make changes under a settlement agreement without any dismissal which the employee signs. However, it is important to be aware that a settlement agreement cannot be used to make changes that would otherwise be void under TUPE.
The last point I want to mention is contractual protection. If an incoming employer is making changes to working conditions in the context of an outsourcing because the client wants them to restructure and transform the service - for example moving to a 24/7 offering instead of 9-5 for 5 days only as is currently provided, the supplier may want to ask for contractual protection from the client to cover the risk of any Reg 4(9) (11) claims, as the client is requiring the changes.
Practical tips
So - now for a few more general practical tips.
If the incoming employer needs to make any changes, they will need to provide information about them to the outgoing employer as any proposed changes would be 'measures', as I've mentioned and they will need to make up part of the consultation process. It is usually helpful to liaise with the outgoing employer so that the incoming employer can take a full part in the consultation process and speak directly to staff about their proposals. In this way, they can hopefully complete an effective 'selling' exercise for the changes to the staff and get their buy in to prevent issues later.
Individual meetings with employees may also be useful so that the incoming employer can talk to the employees directly and try to find out early on if there are any issues with the changes. They can then try to iron these out in order to avoid reg 4(9)(11) claims or other risks after the transfer. It is better to gain goodwill with transferring staff to try to be as flexible as possible and often it can be counter productive to try to force changes through as employees often vote with their feet and may bring a claim along the way! eg if changes are proposed around hours of work or location and the employee raises issues about caring responsibilities, it is always better as the incoming employer to see if these can be accommodated in any way.
It is important to determine what method is going to be used to make the changes, as this will impact how long it may take, and I'll come onto a few points on timing on my next slide.
Timing
The timing of any change process is key. Can the transferring employer wait to deal with any proposed changes until after the transfer - when it can consult with staff in an orderly way - or does it need to be made from day 1?
For example - if a change is needed to working patterns - it may be possible for the transferee to accommodate different shifts for a time to enable a full assessment to be made of what is needed. However - often a plant or business will not be set up to deal with different shift patterns and so this will need to change from day one. In the same way - the transferee may not be able to provide medical insurance with the existing provider and needs to put insurance benefits in place from day 1 but might be able to make other types of changes over a period of time - for example ringfencing the provision of a company car for a certain amount of time post transfer.
There will be an issue with pre transfer consultation as the transferee will not be the existing employer.
If the employer has decided to dismiss and reengage employees to ensure that any changes are valid and enforceable, this may trigger collective redundancy consultation obligations if there are 20 or more proposed dismissals within a period of 90 days. If this happens, there will need to be 30 days (or 45 if 100 or more employees are affected) after the start of consultation before the first dismissal takes effect, and there are requirements about the information to be provided and the content of the consultation.
Since 2014, collective consultation can be carried out pre transfer which can save time - but query how much a new employer wants to do this if it can avoid doing so, as it looks quite aggressive, and may not start off on the right foot with new employees.
In summary the incoming employer needs to plan the process carefully, decide what they need to change and how they are going to do it , and be clear on the reasons why so they can explain these to staff. Where possible, they should try to be flexible to accommodate the transferring employees as much as they can.
Jane - I think you've been monitoring the questions for us, please can you share what has come in?
Jane: Often the incoming employer will need to change the place of work for employees, but does not need to make any redundancies. If there is no mobility clause can employers validly make a change to an employees workplace under TUPE?
Hannah: a change in workplace is now an ETO after the 2014 changes made to TUPE. Before then, there would also have been the need to make job losses or change to job functions as well as changing the place of work in order for the change to be valid, which seems a nonsense which seemed a nonsense if these additional changes were not needed and could detrimentally affect employees. No job losses are now required and provided the employees agree to the move, the workplace can be changed.
Jane: You've mentioned that a new employer may not be able to replicate benefits and may have to introduce something of substantial equivalence - but what happens in practice if the employee doesn't agree? How does this get resolved?
Hannah: It will only get finally resolved if the employee brings a claim in the tribunal that the change is not valid - and the tribunal decides whether the employer has passed the test or not.
Practically employees are only going to bother to bring an individual claim if it is worth a significant amount of money, as often they may wish to remain on good terms with their employer. Employees do always have the option of making a claim at a later date though - perhaps if relations have deteriorated due to other issues in the future.
Alternatively, if there is a union involved, they may choose to bring a claim against the employer even if it is a smaller issue but affects a lot of employees, and on that basis is collectively important.
Jane: Can an employer substitute their own employee handbook for that of the outgoing employer? What happens if one of the employees is going through an existing disciplinary process?
If the handbook is discretionary then the employer can substitute their own policies in place of those of the existing employer, but it is important to provide details of any proposed changes as measures in the consultation process and ideally flag up any significant changes.
If it is contractual then the employer would need to consider ways of validly making the changes in the way I've spoken about today
For any employee going through an existing process - e.g. disciplinary or long term sickness etc. then for reasons of fairness it may be appropriate to keep those employees on their existing procedure. To decide what action to take, you'd need to look at each individual set of circumstances, review the differences in the policies and how that might affect the individual.
Jane: there is one here which is a scenario we see quite often particularly in a private sector where things are happening at short notice. It is what tips do you have for planning to make changes as an incoming supplier as transferee but you will not have the employee information which is as you mentioned earlier Hannah helps you kind of shape what measures you might need until very close to the transfer date so you are in a competitive scenario and the process just does not allow for that information to be released earlier?
Hannah: I think you just have to do the best that you can with what you have got. Some information will be provided. If you are in a bid process often there is the ability to ask questions to ask follow up and make enquiries there may be some information that can be provided on a more general basis. I think that whatever time or stage you have the information you just have to try and work through that as quickly as possible.
I think the important thing is that at whatever stage you get the information if you know you are going to be making measures then there is an obligation right up to the date of transfer that you provide those to the outgoing employer so that they can be taken into account in the consultation process.
If there is a situation where you really do not have any information then it might be wise to try and implement as few changes as possible if that it at all possible or to provide some information about for example, your pay dates that you are going to be implementing even if you do not quite know what is coming across so that you are just feeding something in.
Ultimately, if you have not had the information and you cannot provide measures then I think you would have a good defence to any later claim that might arise but from day one really get on top of what these employees have got and try and just talk to them and consult with them and make any changes necessary as soon as you could. Try and deal with that as smoothly as possible.
Jane: I suppose commercially depending on the situation it may be, we did a job a couple of years ago where the information just varied wildly between saying it was going to be ten people or 150 and so we built into the contract with the client a kind of change mechanism depending on how many people actually came across but that does not necessarily help you with the awards for individual claims does it but commercially it might.
Hannah: Yes absolutely, I have had a couple like that and we have had a price adjustment mechanism taking into account a reconciliation. It often happens even when you have got information given to you but you know it may not be accurate, the outgoing employer is not very organised so you have an adjustment mechanism, a reconciliation is done at a certain point post-transfer and then the charges or pricing can be adjusted accordingly to take into account the additional benefits or costs that were not expected.
I think that does highlight that it is really important to get contractual protection in place as much as you can because your contract with either the seller or the client in an outsourcing is going to be aware you get your protection whether it is unexpected employee protection or trying to adjust the price like this.
Jane: Yes and very quickly there is a question that says that if you are in a collective redundancy scenario and you get a challenge for failing to inform and consult under the redundancy legislation collectively, can you get an award for that and also for failing to inform and consult under TUPE if you also get that one and I think I am right in saying technically the answer is yes but we do not see it happen very often in practice do we?
Hannah: No, I do not think I have come across a case where it has happened but yes it is definitely a risk, it is not excluded, there is no carve-out, so you could theoretically be subject to both and I think that is something to bear in mind.
Jane: Yes, could be a very expensive mistake.
Ok that is all the questions we have got time for now, there are a few we did not get to so we will follow up by email but thank you very much Hannah for talking us through all of that. Thank you all for joining as I said you will get a questionnaire by email shortly after the webinar closes and we would be very grateful if you took the time to fill that in and send it back to us so we can use your feedback for future sessions.
So just as a final reminder tomorrow we have got our second webinar in this series, same time 11 o'clock and we are going to be taking a look as ESG, a very common buzzword but what exactly does it mean for the HR community and employment lawyers working in-house.
So we have that tomorrow and otherwise I wish you a very good rest of the day. Thank you.
Hannah: Thank you everyone.