TUPE stands for the Transfer of Undertakings (Protection of Employment) Regulations. The regulations give protection for employees in situations where the identity of the employer changes and the new employer manages the old employer's business. The pre TUPE position was that the old employer would make the employees redundant and the new employer would be free to reemploy however many of those employees on what ever terms he would have elected. TUPE by contrast automatically transfers the employees to the new employer and gives the employees  greater protection than domestic UK employment law  provides.

In the restaurant / pub sector examples where TUPE applies are:
 

• the sale of a restaurant business to new owners;
• the transfer of a landlord's licence;
• the changing of contractors (e.g. the provision of door people).

If you are contemplating a transaction whereby following completion of the transaction the underlying business activity remains unaltered then TUPE may apply.

So any sale of a property and associated business or transfer of a licence (even a licence reverting to the landlord) will be a TUPE transfer.  Whether TUPE applies is a matter of fact from which the parties cannot contract in or out.

The old employer will be under a statutory duty to disclose employee liability information to the new employer.

Both parties will have to inform and consult with the affected employees - this involves the election of works council and disclosure of any anticipated changes by the new employer. However, the statute and the judicial authorities provide little guidance as to how and when all this should be attended to.  Advice must be taken - the protective award is calculated to punish employers who fail to attend to this.   

If the new employer does not conduct thorough due diligence into the potential liabilities and cover these issues in the contract the new employer will have no comeback against the old employer - the party who in the absence of TUPE would have been responsible for those problems.  

It is often better to pre-empt problems and consider how they can be dealt with rather than engaging in the zero sum battle of allocating liability. Although it is harder to fairly dismiss an employee with one year's service or change an employee's terms and conditions the regulations provide employers some leeway so as long as good timely advice is received any future exposure can be minimised.