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Transferring to another employer (TUPE)

This advice guide for RCN members outlines the statutory requirements and duties placed on your employer, and your rights, in a TUPE situation.


TUPE Regulations

If your employer is changing from one service provider to another, your existing employment contract could be protected under the Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended by the Collective Redundancies and Transfer of Undertaking (Protection of Employment) (Amendment) Regulations 2014, known as ‘TUPE’.

You are protected under TUPE regardless of the size of business or service you work for. If you are involved in a relevant transfer that qualifies for TUPE protection you should be guaranteed that your:

  • job transfers over to the new company
  • employment terms and conditions transfer, and
  • continuity of employment is maintained.

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. If you need support please contact us on 0345 772 6100.

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Changes to your terms and conditions after a TUPE transfer

Any detrimental changes to your terms and conditions will be void only if the sole or principal reason for the variation is the transfer itself. Positive changes to the benefit of the employee are not prevented by the regulations. An employer can also agree with the employee to vary terms and conditions for a reason unconnected with the transfer.

A redundancy situation may arise post-transfer, by reason of the transfer, and dismissal by reason of redundancy may be permissible under TUPE. However, this defence is limited.

Please take advice from us if either your current employer or future employer tries to change your terms and conditions of employment in connection with the transfer. You can contact us on 0345 772 6100

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Consultation during a TUPE transfer

Under TUPE regulations both your current and new employers have an obligation to 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
  • Whether any future changes may be made to the terms of conditions of the effected employees, including whether redundancy may be an option. They must also consult with the representatives with a view to seeking their agreement.

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.

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Objecting to the transfer

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 (save where the transfer involves or would involve a substantial change to your detriment in your working conditions).

Termination following objection would not generally be classed as a dismissal and you would therefore be unable to pursue a claim of unfair dismissal.

Always take advice if you are thinking of objecting to a transfer. Any objection that leads to a termination of contract would automatically rule out the right to redundancy payments as it would be deemed to be a resignation. Please contact us for more advice on 0345 772 6100.

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NHS transfers

The Social Partnership Forum has developed the NHS Staff Passport. This online toolkit is for staff in the NHS who are transferring from a job within the NHS. It outlines what you can expect to happen to your terms and conditions of employment, including your NHS pension. It is available from their website www.socialpartnershipforum.org.

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Call the RCN on: 03457726100