“TUPE” stands for the Transfer of Undertaking (Protection of Employment) Regulations 2006. This, rather complicated, law protects employees when, through no fault of their own, the identity of their employer changes.
TUPE applies when there is a ‘relevant transfer’. This is either a business transfer, where all or part of the business changes hands but keeps its identity, or a service provision change. A service provision change is where a business contracts out a service to an external contractor, changes from one external contractor to another or the service is brought in-house.
TUPE Regulations are there to protect staff when their employment transfers. They move to a new employer but retain the same terms and conditions that they had with their previous employer. This may result in the new employer having some staff working on the normal company terms and conditions and some staff on different terms. The new employer cannot change the transferred staffs’ terms to make them same, even if this is causing them administrative problems. The terms can only be changed if there is an economic, technical or organisational reason which requires a change in the workforce.
The employers on either side of the transfer are placed under information and consultation obligations. The old employer, the transferor, has to consult with employee representatives about the transfer including why and when it is happening. They also have to give information to the new employer about transferring employee rights and liabilities at least 28 days before the transfer happens. This includes information about the employment terms, disciplinary and grievance record and any tribunal claims. The new employer, the transferee, must give the old employer information about any measures they envisage introducing after the transfer so the affected employees can be consulted on these.
Failing to meet any of the TUPE provisions can leave the employer liable. Any dismissals where the sole or principal reason for dismissal is the transfer are automatically unfair. Failing to inform and consult with staff about the transfer can leave the employer facing a tribunal claim for compensation of up to 13 weeks’ pay for each employee.
