Navigating Employee Rights When a Business is Sold
5 May 2025

When a business is sold, employers must balance their legal duty to employees with the practical realities of making a sale. The Employment Relations Act 2000 (ERA) requires employers to keep employees informed about any changes that could impact their jobs and to give them an opportunity to share their thoughts and provide feedback before decisions are finalised. However, this requirement can be challenging when a business sale is involved.


Why This Matters


Selling a business is a complex process and almost always affects employees, because their jobs with the current employer typically end when the sale is completed. The law requires employers to discuss these potential changes with employees before making final decisions. However, sharing sale details too early can be risky for business owners, because it involves sensitive commercial information.


Common Approaches


  1. After-Sale Consultation: Many businesses wait until a sale agreement is signed before discussing the impact with employees. This allows employers to protect confidential business details but does not fully meet the legal requirement for early consultation.
     
  2. Conditional Sale Agreements: Some businesses use conditional sale agreements, meaning the sale only goes through once certain conditions are met. This allows time to consult employees before the sale is finalised; although, it may not fully satisfy the ERA’s requirements.


Protecting Confidential Information


Employers are allowed to withhold certain confidential details from employees if sharing them would harm the business. However, they must have a valid reason for keeping information private. Confidential information, in this case, refers to details shared under an expectation of secrecy.


Finding the Right Balance


Balancing transparency with business interests is challenging. While employers must act in good faith by informing and consulting employees, they also need to protect the business. Exploring different approaches, such as conditional sale agreements, can help businesses navigate this tricky situation while staying as compliant as possible with employment laws.


Recent Case Law


The above issues have been addressed by the Employment Court in 2024 inBirthing Centre Limited v Matas. The Court of Appeal subsequently declined the appeal against the findings brought by the Birthing Centre Limited. The case involved the acquisition of a private birthing centre by the MidCentral District Health Board (“MDHB”). The transaction resulted in the vendor closing its centre, terminating the employment of all midwives, with the MDHB offering them new employment. The MDHB requested that the employees not be informed of the negotiations due to confidentiality reasons and the terms of the agreement were only announced after the transaction was finalised. Although the affected employees were consulted about some terms and conditions of employment with MDHB, the termination and transfer of their employment was effectively concluded by the time they were notified.


Several employees raised personal grievances for unjustified dismissal and breaches of good faith alleging they were not adequately consulted. The key focus of the arguments before the Employment Court were whether the threshold had been met allowing the vendor to withhold details of the sale until completion on the grounds that it was commercially sensitive. The Employment Court held that the vendor had failed to meet its obligations and concluded“a fair and reasonable employer could in the circumstances have considered options for exploring whether it could maintain the integrity of [its] commercial position as well as the DHB’s commercial position, while informing its employees of the proposal in a confidential way”.


The Employment Court further held that the vendor had failed to:


  • consider whether providing information to the union was viable on an embargoed basis;
  • direct employees not to share information during the consultation process;
  • include as a condition of sale that staff be consulted on a confidential basis and their view sought before the sale agreement became unconditional. 


Conclusion


It is necessary to take into account basic employee rights when selling a business. Although it may be important to protect commercially sensitive information, employers need to look at ways to ensure that employees are kept informed about potential decisions which will affect their employment. A business will need objective evidence to justify maintaining confidentiality of information, including evidence of unreasonable prejudice to their commercial position which would occur if they did share information with employees prior to finalising a sale.


If you have any questions or seek advice or assistance, please do not hesitate to contact Brett Vautier or Stephanie Harris.

5 October 2026
Many people spend time preparing a will, but far fewer consider what would happen if they were still alive but unable to make decisions for themselves. An Enduring Power of Attorney (EPA) is an important legal document, which enables you to appoint another person (known as your attorney) to make decisions for you if you become mentally incapable of doing so yourself. Like a will, an EPA can be updated as your circumstances change. Like insurance, an EPA may never be needed, but it provides important protection should the unexpected occur. There are two types of EPA. The first relates to property and the second relates to personal care and welfare matters. Property Attorney Your property attorney will make decisions relating to financial assets; that is arranging benefits, paying bills, looking after bank accounts, and buying and selling assets (selling the family home to pay for care for example). You can appoint any number of people to act as a property attorney together or separately, and/or appoint attorneys in succession if you think that is a sensible idea too. You can also elect whether the EPA for property is to take effect immediately and then endure past the point you have lost capacity, or whether it is to take effect only in the situation where you have lost capacity. An EPA that takes effect immediately can be useful if you are travelling overseas or are physically unable to manage aspects of your affairs yourself. While you retain capacity and you remain able to continue managing your own affairs, your attorney’s role is generally to assist rather than take over. Personal Care and Welfare A personal care and welfare attorney will make decisions relating to your health and wellbeing such as your medical treatment, living situation, what level of care you receive, and the like. You can only appoint one attorney at a time as a personal care and welfare attorney. However, like the EPA for property, you can also appoint attorneys in succession. The EPA for personal care and welfare will only ever take effect in the situation where you have lost capacity. What Happens if you do not have an EPA? If you lose capacity and have not appointed an attorney, your spouse, partner, children, or relatives may discover they are unable to access bank accounts, manage investments, sell property, sign legal documents, or make certain healthcare decisions. This is mostly because financial institutions and government agencies generally require proper legal authority before allowing another person to act on your behalf. Without an EPA, family members may need to apply to the Court for orders appointing a property manager to manage your financial affairs and/or a welfare guardian to make personal care and welfare decisions. This process can be a stressful, an expensive, and a time-consuming exercise at a time when stress levels are already high. Things to Think About when Preparing your EPA The sorts of things you need to think about when preparing your EPAs are: Who you would want as your property attorney(s) and any successor attorneys. Who you want as your personal care and welfare attorney and any successor attorneys. Whether you wish to impose any conditions on your attorney. Whether you wish to require your attorneys to consult or provide information to named persons. In relation to your property attorney, whether you authorise your attorney to use your property for their own benefit or the benefit of any other person. In relation to your property attorney, whether you authorise your attorney to use your property to provide gifts (either to family or charities).  It is also important to be aware your EPA needs to be signed and witnessed in the presence of either a lawyer, registered legal executive, or an authorised officer of a trustee corporation for your EPA to be valid. Proposed Changes to the Legislation The Law Commission has recommended replacing the current Protection of Personal and Property Rights Act 1988, which governs EPAs, with an entirely new Act. The Government has accepted the central recommendation to replace the legislation and has indicated substantive reform work is a priority. We do not know precisely what those changes (if any) will look like, but the proposed reforms are summarised as follows: More emphasis on your wishes: Under the current framework, attorneys are often guided by what they think is in your best interests. The proposed reforms would place much greater weight on your own wishes, values, beliefs, and preferences. That may mean that rather than simply appointing an attorney, you may be encouraged to leave more detailed guidance to your attorneys. The attorney’s role may be more focussed on carrying out what you would have wanted rather than them deciding what they think is best. A new supporter role: The proposed reforms establish the creation of a formal supporter whose job is to help a person understand information, weigh options, and communicate decisions without actually making the decision for that person. Capacity may be viewed more flexibly: The reforms recognise capacity is not always all or nothing. The new framework is expected to allow more tailored arrangements rather than completely removing a person’s decision-making authority. Greater safeguards against abuse: Future reforms are likely to strengthen oversight and accountability for attorneys by introducing better record-keeping requirements, clearer obligations on attorneys, and potentially a voluntary register of EPAs. Summary EPAs are not just documents for the elderly. Accidents, illnesses, and unexpected medical events can affect anyone at any stage of life. By putting an EPA in place, you retain control over who will make decisions for you if you cannot make them yourself and, having EPAs in place, can reduce stress for your family in the event you lose the capacity to make decisions for yourself. The Law Commission’s review of the legislation is a good reminder of just how important EPAs are, and we are of the view that ensuring they are in place is of the utmost importance. That being said, the current EPA system is effective and still one of the most important estate planning documents available. If you are interested in learning more about EPAs and the importance of them or would like to discuss putting them in place, please reach out to one of the team members at Glaister Keegan. We would be happy to assist you.
31 August 2026
We're pleased to introduce Zak Nasir , Senior Associate in our Land Development and Commercial Property team. Zak brings a unique blend of legal and planning expertise, helping clients navigate some of New Zealand's most complex property and development projects. With extensive experience in land development, subdivisions, commercial property and resource management matters, Zak advises developers, private clients and infrastructure providers on all aspects of property acquisition, development structuring, subdivision, leasing and disposal. His practice spans projects of all sizes, from boutique developments through to major residential subdivisions involving hundreds of lots. Before becoming a lawyer, Zak worked as a town planner, giving him a valuable understanding of the planning and development process. This background allows him to identify potential issues early and provide commercially focused, practical advice throughout the life of a project. Clients and colleagues alike value his ability to bridge legal, planning and development considerations to achieve successful outcomes. He has previously worked in London as a lawyer and most recently at a large top tier firm in Auckland. Throughout his career, Zak has advised on significant commercial property transactions, large-scale development projects, leasing arrangements and Public Works Act matters. He is known for his pragmatic approach and his ability to work collaboratively with surveyors, engineers, planners and government agencies to resolve complex issues efficiently. Whether assisting first-time developers or experienced industry participants, Zak is committed to delivering clear, practical solutions that help clients move forward with confidence. We are delighted to have him as part of the Glaister Keegan team and look forward to the continued value he brings to our clients and colleagues. Contact: zak.nasir@glaister.co.nz
31 August 2026
Alternative Holidays Current system If the full-time employee works on a public holiday that is an OWD, they get one full alternative holiday , no matter how many hours they worked. The full-time employee must take their leave on another OWD. The full-time employee can cash their leave up after 12 months. Proposed new system The full-time employee earns alternative holiday hours , matching the number of hours they worked (or were on call and called in) on the public holiday. The full-time employee can take the hours on any day they could normally work . The full-time employee can cash their hours up at any time . Leave Payments Current system Leave payments require multiple calculations to account for variable hours and payments. Annual leave taken soon after parental or volunteer leave is paid at a lower rate . Proposed new system All leave is paid at an hourly rate , based on the lowest hourly rate payable for the day the leave is taken plus an average for piece‑rate work. Fixed allowances are paid in full during leave. Annual leave after parental or volunteer leave is paid normally . Leave Compensation Payments (Replacing “Pay as You Go”) Current system Employers and workers can agree to “Pay as You Go” (8% of gross earnings) for casual short‑term work. Proposed new system A Leave Compensation Payment (LCP) of 12.5% of a worker’s ordinary hourly rate is paid on all casual hours . Workers with standard hours also get LCP on additional hours they work, instead of accruing annual or sick leave on those hours. Fixed‑term workers earn leave from day one . For more information please contact Brett Vautier and Paul McKendrick.
Show More