The Incoming Provider's TUPE Checklist

The incoming provider is in the most difficult position in a TUPE transfer. The outgoing provider knows the workforce. The client knows the contract history. The incoming provider knows neither — and yet from Day 1, they inherit the employment liabilities, the contractual terms, the disciplinary history, and the collective agreements of a workforce they have never managed.

Poor due diligence at this stage is not just a compliance failure. It is a commercial one. Workforce costs that were not modelled accurately, liabilities that were not identified, and Day 1 operational failures that damage the client relationship from the outset — all of these trace back to inadequate pre-transfer preparation.

TUPE due diligence begins at the Invitation to Tender stage, not after award. The incoming provider should request, as part of the ITT response process: total headcount by role and grade, current salary and hours for each role, details of any collective agreements in place, and any known TUPE-related liabilities from the current contract.

This information is not always provided — outgoing providers are not obliged to share it at bid stage. But asking for it, and documenting the request, establishes a record that is useful if disputes arise later.

After contract award, three things must happen in the right order. First, pursue ELI from the outgoing provider — do not wait for it to arrive. Set a deadline, document your requests, and escalate through the client if necessary. Second, identify your 'measures' — any changes you intend to make to the transferring workforce's terms, working arrangements, or roles. Third, consult with employee representatives on those measures before the transfer date.

The sequence matters. Consultation on measures cannot happen until you know what your measures are. And your measures cannot be finalised until you have ELI. Starting the process early gives you time to work through this sequence properly.

Day 1 is a compliance event, not just an operational one. Before the first shift, three things must be confirmed: payroll is live and accurate for all transferring employees, welcome communications have been issued to every transferring employee, and site access has been confirmed for all staff.

Day 1 payroll failures are the single most common cause of immediate employee relations problems in FM TUPE transfers. If a transferred employee is not paid correctly on their first pay date, the trust relationship with the new employer is damaged from the outset — and it is very difficult to recover.

The risks do not disappear after the transfer date. In the first 30 days, the incoming provider should conduct proactive wellbeing check-ins with all transferred employees, monitor absence and turnover rates against baseline, and document any operational issues that may have a workforce impact.

Most importantly: if you need to make any changes to roles, terms, or working arrangements in the first 30 days, write the ETO rationale before you act. The failure to document an ETO reason before restructuring is the most common source of TUPE tribunal claims in FM — and it is entirely avoidable.