TUPE – Transfer of Undertaking
First things first… what is TUPE?
TUPE (you’ll often hear this pronounced ‘Toopee’; it stands for ‘Transfer of Undertakings – Protection of Employment’) is a set of regulations that have been put in place to protect employees when a business changes hands. The aim is to ensure that the rights and liabilities associated with those employees who transfer across to the new owner/employer transfer with them. In simple terms, TUPE serves to ensure that the new employer steps into the shoes of the old employer so that it is as though the employee’s original contract of employment was always with the new employer.
When does TUPE apply?
- There are many different situations in which TUPE can apply, but to give you an idea here are some examples:
- When an employer buys or sells all, or part, of a business as a going concern
- When an employer outsources a service
- When an employer takes over a premises and operates the same business from those premises
- When a business initially contracts services from another business, but then takes those services in-house using the same staff
It’s important to note that there are complex rules about whether TUPE applies in an insolvency situation.
What does TUPE mean for me?
If you are in a situation where TUPE applies, you have the legal right to transfer to the new employer on your existing terms and conditions of employment. This means all your current employment rights and liabilities remain in force (although there are special provisions dealing with old age pensions under occupational pension schemes). It includes your rights under the contract of employment, statutory rights and continuity of employment. It also includes your rights to bring a claim against your employer for unfair dismissal, redundancy or discrimination, unpaid wages, bonuses or holidays and personal injury claims etc.
Be aware that if you object to the transfer you do not automatically transfer to the new employer. Instead, your contract will terminate on the date of the transfer.
What does my employer have to do?
Under TUPE your employer is obligated to consult with either your relevant Trade Union, or the elected staff representatives, in plenty of time before the transfer.
- You’ll be glad to know that TUPE sets out the requirements for:
- How elections of staff should take place
The consultation with elected staff and/or a Trade Union
It’s important to note that if your employer fails to carry out elections and consultation in accordance with the requirements stipulated under TUPE, then you and all other affected employees are likely to be able to claim for a punitive award of up to 13 weeks pay in a tribunal.
As part of the consultation process, your employer must provide specific information to the Trade Union and/or elected staff representatives which relates to the transfer and its impact on staff. The precise nature of the information to be provided is clearly set out in the TUPE regulations.
In the event that you are working for a micro-business that has fewer than 10 employees, if no appropriate representative(s) is in place then your employer can consult directly with all affected employees.
They’ve dismissed me… can they do that?
If the sole reason for your dismissal is the transfer, then no, they can’t do that. Dismissal in this situation is automatically unfair. However, if the principal reason for the dismissal is linked to the transfer but is for an economical, technical or organisational reason (an “ETO” reason) which entails changes in the workforce, then your employer may be within their rights to do dismiss you. Bear in mind, though, that it may still be unfair for other reasons (e.g. unfair selection) so it’s important that you take advice.
We offer a free initial telephone consultation, so if you need to find out more contact us now on 01604 700099.
They want to vary the terms and conditions of my employment under TUPE… can they do that?
If the sole or principal reason for the variation of the terms and conditions of your employment is the transfer, then no, they can’t do that. Under TUPE regulations, the new employer is required to take the employees on their existing terms and conditions of employment. However, if the principal reason is the transfer, then unless there is an ETO reason for the change it is permitted if both the employer and employee agree the variation of the terms of employment. An example of an ETO reason might include a change in the number of the workforce e.g. redundancy. In some insolvency situations permitted variations are also allowed.
The best thing is to seek advice so you understand where you stand in your particular situation. We offer a free initial telephone consultation, so please do contact us now on 0800 304 7254.
