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Understanding TUPE

11 Dec 2015

RCN Senior Legal Officer David Khan on the protection available if your employment is transferred.

There is a growing number of RCN members who are seeing their employment transfer to a new business. This could be due to the increasing numbers of trust mergers and private contractors successfully tendering for NHS Services. This transfer can mean challenges to terms and conditions of your employment so it is very important to understand the protection available.

What are my rights if my employer is transferred?

If your employment is transferred as part of a relevant transfer then your terms and conditions of employment are protected under The Transfer of Undertakings (Protection of Employment) Regulations 2006.These are referred to as the TUPE regulations.

A relevant transfer takes place when a business or part of a business changes hands, or when the responsibility for providing a service changes from one employer to another.

Note that there must be an organised grouping of employees (this can be just one employee) whose main purpose must be to provide the service being transferred and this grouping must remain in the same form after a transfer.

What about my pension?

There is no automatic right to transfer your pension to your new employer, although some employers may agree to do so voluntarily.

Does my employer have to consult with me before a transfer takes place?

Yes. Your current and prospective employer are under a duty to inform and consult with any employees that may be affected by a proposed transfer. This should be done by electing employee representatives. Consultation must begin long enough before a transfer takes place to ensure there is meaningful consultation. If there is a failure to inform or consult then the current and new employer can be ordered by an Employment Tribunal to make a payment of up to 13 weeks’ pay for each employee.

Can a new employer make changes after there has been a transfer?

An employer can make changes to your contract after there has been a transfer, as long as these are agreed with affected employees.

However, if the reason for the changes is the transfer itself then the changes will be void.  A harmonisation exercise - where an employer proposes to harmonise the terms of new and old employees – may also be unlawful under the TUPE Regulations.  

An employer can potentially justify any contractual changes if it is able to show that there is an economic, technical or organisational reason for the change.

What about pay rises?

According to recent case law, transferred employees will not be entitled to receive any pay rises that have been agreed as part of a wider pay bargaining process and take effect after the date of transfer. This is because the TUPE Regulations have been interpreted as meaning that only those contractual rights that exist immediately prior to any transfer will be protected.

What about dismissal?

As with contractual changes, a new employer can treat newly transferred employees the same way as older employees, and a dismissal will not be unfair if there is a fair reason for dismissal, there is a fair dismissal process and the decision to dismiss is within the band of reasonable responses. A dismissal will be automatically unfair if the reason for the dismissal is the transfer itself.

Note that where the reason for dismissal relates to a change in work location this will not be automatically unfair, although normal unfair dismissal principles will apply.

  • If you are changing employers and need support, or if you believe there has been a breach of TUPE regulations then please contact RCN Direct on 0345 772 6100.
  • Find out more about transferring to another employer (TUPE).