Transferring to another employer (TUPE)

Overview

TUPE stands for Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended by the Collective Redundancies and Transfer of Undertaking (Protection of Employment) (Amendment) Regulations 2014.

If the TUPE regulations apply to you because you are transferring to a new employer, as an employee, your terms and conditions of employment automatically transfer to the new employer. As an employee, your existing employment contract may be protected, except for old age, invalidity and survivors benefits under a pension scheme. You are also protected under TUPE regardless of the size of business or service you work for.

The two types of transfer protected under TUPE are when:

1. a business (or part of one) is transferred to a new employer 
2. a service provision change takes place (i.e. a service you work in is being outsourced, re-tended or brought back in house).

If you are involved in a relevant transfer that qualifies for TUPE protection, you should be assured that your:

• job transfers over to the new company
• employment terms and conditions transfer
• continuity of employment is maintained
• new employer is not able to change your terms save in limited circumstances, and 
• you have enhanced protection against dismissal if you have sufficient service.   

TUPE is a specialised area in law and if you are involved in this process, please contact us.

Under TUPE regulations, both your current and new employers have an obligation to provide certain information and consult with your representatives prior to the transfer. They must share the following information:

• the fact of the transfer, its approximate date and the reasons for it
• the legal, economic and social implications of the transfer for the affected employees
• any measures either employer envisages he will take in respect of the transfer or the fact that no measures will be taken. The word measures means any action, step or arrangement including redundancies. They must also consult with the representatives with a view to seeking their agreement
• information relating to the use of agency workers.

The information must be provided to the representatives long enough before the transfer to enable consultation to take place. The representatives may be union representatives recognised for collective bargaining or staff members who have been elected to represent. In small businesses, with less than 10 employees, employers can instead consult directly with individual staff.

We have produced a checklist which may help you prepare for any meetings you attend. Please keep copies of all documentation you receive in relation to a proposed/actual transfer. They will be needed if the new company attempts to make changes after the transfer has taken place.

TUPE is a specialised area in law and if you are involved in this process, please contact us.

As an employee, you have the right to object to the transfer with either the transferor or the transferee, however, this objection would automatically terminate your contract on the transfer date. There will be no dismissal in law, meaning there will be no right to claim unfair dismissal and no entitlement to any statutory or contractual compensation on termination (save where you object and resign due to a fundamental breach of contract by the employer or because the transfer involves or would involve a substantial change to your detriment in your working conditions).

Always take advice if you are thinking of objecting to a transfer. Objecting to a transfer has significant implications on your employment rights and we strongly recommend you contact us for more advice before proceeding to object.

On the date of transfer your employment contract is taken over by your new employer. This means your start date and terms and conditions remain the same as they did with the former employer.

Changes that are due to the transfer itself are void and unenforceable, except where there is an economic, technical or organisational reason for the change or changes and either the employee agrees to the changes or the contract of employment allows for the change. Changes that are unrelated to the transfer can be made but if this is the case, you and your employer must follow the usual process for any change of contract. Please read our guidance on contracts.

Please contact us us if either your current employer or future employer tries to change your terms and conditions of employment in connection with the transfer.

A redundancy situation may arise post-transfer by reason of the transfer, for example restructuring, and dismissal by reason of redundancy may be permissible under TUPE as an economic, technical or organisational reason. Please see our guidance on redundancy and reorganisation and contact us if you are in this situation.

The Social Partnership Forum (SPF) has developed a staff transfer guide for staff in the NHS who are transferring from a job within the NHS under TUPE. It outlines the types of transfers that may occur, for example transferring to a job in a local authority. It also explains what you can expect to happen to your terms and conditions of employment, including your NHS pension. SPF also have a list of FAQs that are very helpful.