13 August 2023

The TUPE Process For Employees

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (commonly known as TUPE) provides employees with protection when they transfer from their current employer to a new employer.  

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The Transfer of Undertakings (Protection of Employment) Regulations 2006 (commonly known as TUPE) provides employees with protection when they transfer from their current employer to a new employer.  

How the TUPE applies 

TUPE applies in one of two types of ‘relevant transfers’: 

  1. A business transfer, whereby there is a transfer of an economic entity which retains its identity. An economic entity is a ‘grouping of resources that has the objective of pursuing an economic activity.’ To determine whether an economic entity has retained its identity, it will be considered as to whether the entity (your employer) will still be in existence after any transfer. Where there has been a transfer from one owner to a new owner and the same services are being offered, it will be apparent that the new owner (the new economic entity) is retaining the original identity as it is offering the same or similar service. This would include when a company sells its business to another company who will continue to run the company as it was.
  2. A change in a service provider, for example where contracts previously dealt internally are taken over by a contractor. For example, if a company employs its own cleaning staff but then decides that it will outsource this work to the cleaners that have previously been employed with TUPE to the company who has taken over the work.

When a TUPE transfer takes place, both the old and new employers should be involved and should identify which of their staff will be impacted by the transfer. They should then inform (or in some cases consult) with those employees who are affected by the transfer. The old and new employers may need to involve trade unions in any discussion of transfers. The employers must give employees information concerning the transfer, when and why such a transfer is happening, the impact of the transfer of the individual employees and whether it is linked to any reorganisation. This should include allowing any staff to refuse to be transferred (this effectively ends employment when the transfer takes place or before by agreement, in such instances the employees would usually not be entitled to any redundancy payment). 

 The old of existing employer is required to give the new employer certain information relating to the staff that will be transferring and this includes:- 

  • Ages
  • Names
  • Job titles
  • Details of pay
  • Details of holidays
  • Details from the employment contract 

Where a TUPE transfer has occurred, the regulations provide protection to employees to ensure that they are treated similarly in the new organisation as they would have been in the organisation which has been sold.  If the TUPE regulations apply, any employee to the transferor will have their employment transferred to the new employer on the existing terms of their original contract without any break in their employment period. 

TUPE contract amendments 

It is possible for your employment contract to be amended if the amendments improve your current contractual terms, for example offering an increase in salary. The only other circumstance where contractual terms can be amended is if there is an ‘economic, technical or organisational’ (ETO) reason for the change, for example where the change is required for saving costs or restructuring the organisation. 

It is possible at any time for an employee to agree to contractual changes with the new employer, and the TUPE regulations will not affect this agreement. 

If you do not wish to transfer your employment to a new employer, you are able to refuse and in certain, limited, situations you could make a claim for redundancy or unfair dismissal.  

Do you need help with the TUPE process?

Contact our team of friendly solicitors!

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0800 987 8156

Nicole Gibbs

Senior Associate (Solicitor)