TUPE for Employees

TUPE usually comes up in two broad situations:

• a business transfer, where a business or part of it moves to a new employer
• a service provision change, such as outsourcing, retendering or bringing a service back in-house

Whether TUPE applies can sometimes be straightforward, but not always. One of the first questions is whether you are assigned to the part of the business or service that is transferring. That is often where legal advice is useful, especially if your role is split across different teams or contracts.

If TUPE applies, your employment normally transfers automatically to the new employer. That means your contract continues as if it had always been with them, rather than starting again from scratch.

This usually means the new employer takes on:

• your existing terms and conditions of employment
• your continuity of service
• your holiday entitlement
• collective agreements already in place
• liability for earlier breaches of employment rights in some situations

Your original start date is preserved, which can affect rights such as notice, redundancy pay and unfair dismissal protection later on.

One of the most common concerns after a transfer is whether the new employer can change your contract. In most cases, they cannot lawfully change your terms just because of the transfer itself. There is no short window after which TUPE protection falls away simply because time has passed.

Changes may be possible in more limited circumstances, for example:

• where the changes improve your terms
• where there is a valid economic, technical or organisational reason involving changes in the workforce
• where the contract already allows the particular change

Even then, agreement will often still matter and pressure to sign new terms or accept harmonisation for administrative convenience should be treated cautiously.

This is often the point where employees need clearer advice. TLW Solicitors can review any proposed new terms, explain whether the changes are likely to be lawful, and help you decide how to respond before your position is weakened by silence or apparent agreement.

TUPE does not give absolute protection against redundancy or dismissal, but it does give stronger protection than an ordinary change of employer. If the sole or principal reason for dismissal is the transfer itself, the dismissal is usually automatically unfair unless the employer can show a valid economic, technical or organisational reason involving changes in the workforce.

That means employers cannot use the transfer as a reason to dismiss staff or force them onto standard contracts. Genuine restructuring or redundancy can still happen, but the employer must still follow a fair process.

Before a TUPE transfer takes place, affected employees should be informed and, where relevant, consulted in good time. The old and new employers should explain the fact of the transfer, the proposed date, the reasons for it, and any measures that may affect staff. If that does not happen properly, employees may be able to bring a claim. Compensation for a failure to inform and consult can be up to 13 weeks’ uncapped gross pay for each affected employee.

Consultation is not just a technical part of the process, it is often the stage at which employees first see whether the transfer is likely to affect role, location, reporting lines or terms. TLW Solicitors can help you assess whether the information provided is enough, whether concerns should be raised formally, and whether the process is moving in a direction that may need to be challenged.

Employees can object to transferring to the new employer, but the consequences need to be understood carefully. If you refuse to transfer, your employment will usually end on the transfer date, and this is generally treated as if you have resigned. That normally means no redundancy pay and no ordinary unfair dismissal claim.

A different issue arises where the transfer brings a substantial change to your working conditions to your material detriment. In that situation, resignation and a claim may be possible, but the position is more complex, and it is sensible to take specialist advice before making a final decision.

TUPE issues often become difficult because employees are expected to make decisions quickly while the position is still unclear.

TLW Solicitors can help you understand whether TUPE is likely to apply, whether your role should transfer, what your employer can and cannot change, and what steps should be taken if the process starts to put your job or terms at risk.