TUPE regulation solicitors

The Transfer of Undertakings (Protection of Employment) Regulations 2006, also known as TUPE, applies when there is going to be what is known in the legislation as a “relevant transfer”.

A relevant transfer applies to a number of scenarios. One would be a business transfer – if a business or part of a business moves to a new owner or merges with another business to make a brand new employer.

It also could be as a result out of a service provision change, for example: if a contractor takes over activities from a client (known as outsourcing); a new contractor takes over activities from another contractor (known as re-tendering): or if a client takes over activities from a contractor (known as in-sourcing).

TUPE applies regardless of the size of the transferred business, whether it is in the public or private sector and whether or not it has any profit motive underlying the activities.

TUPE cannot be avoided by contract, meaning that parties cannot ignore or choose not to apply TUPE in a commercial agreement. In some scenarios it will be very clear that TUPE will apply while in others there will be much more uncertainty.

Before a transfer of ownership happens, you are entitled to be consulted and informed and your employer can be penalised if this doesn’t happen.

Under TUPE regulations, the new employer takes over employees’ employment contracts, including:

• all the previous terms and conditions of employment
• any failures of the previous employer to observe employees’ rights (so employees could make a claim for discrimination against the new employer, even if it took place before the transfer)
• holiday entitlement
• period of continuous employment – an employee’s start date is the same as before the transfer, so continuous employment isn’t broken
• any collective agreements previously made

You can refuse to work for the new employer, but this will have the same effect as resigning and you won’t normally be able to claim unfair dismissal or redundancy pay.

A new employer can’t make you redundant simply because you were transferred from another employer. However, they can consult about redundancies before the transfer if your old employer agrees.

If you are made redundant for an economic, organisational or technical reason involving changes to the workforce – ie. the new employer is closing down part of a company because it is loss making – then you may be entitled to a redundancy payment.