The Transfer of Undertakings Protection of Employment Regulations (TUPE) is one of the most complex areas of employment law.

TUPE arises where a business is transferred to another business.  This is typically where a business is sold to another or where there is an outsourcing arrangement (known under TUPE as a service provision change).  Our team of specialist employment lawyers can assist in either scenario.

Sale of a Business

Where a business or part of a business is sold the TUPE Regulations will apply meaning that those employees assigned to the transferring business will also transfer, retaining all of their contractual rights and obligations.  This includes fundamental terms such as length of service, salary, job title and duties, holiday entitlement and all other terms.

Service Provision Change (Outsourcing)

A service provision change arises where;

  1. a company outsources some of it’s functions; or
  2. there is a change in outsourced provider; or
  3. a company insources some of it’s functions from an outsourced provider.

As with the sale of a business any employee who is assigned to the transferring part of the business, will also transfer under the TUPE Regulations and will retain all of their contractual rights and obligations.

Protection From Dismissal And Detriment

Any employee who transfers under the TUPE Regulations (whether a business sale or a service provision change) is protected from being dismissed because of the transfer or from suffering any kind of detriment.  In particular the incoming employer is prevented from changing terms and conditions or consolidating those terms to match their current employee’s terms.

New employers are though sometimes allowed to make some changes, or even dismiss someone, where there is an economic, technical or organisational (ETO) reason entailing changes in the workplace.  Most typically this would be if a redundancy scenario arose as a result of the transfer, but can also incorporate other matters such as changing payroll dates and aligning holiday years.

Employee Liability Information

It is essential in any TUPE transfer that the incoming employer knows what the terms and conditions of the transferring employees are, so that they can honour them.  Outgoing employers are therefore required to provide this information at least 28 days prior to the transfer.  The information must include the identity of the employee, their salary, job title, hours worked, holiday entitlement and other key employment information.

Information and Consultation

It is also a requirement of the TUPE Regulations that employers inform and consult with the staff about what is planned.  Often employers want to keep these matters confidential for as long as possible, but employers must inform and consult with all affected staff sufficiently far in advance of the transfer to allow meaningful consultation.  To complicate matters this information/consultation process will normally need to be undertaken with elected employee representatives which can extend the period of time required.

Post Transfer Integration

The TUPE transfer itself is though only the beginning of the journey for the incoming employer as they must then incorporate those staff into their business.  This is often the most challenging area and we frequently see scenarios where 50%+ of the workforce leave within a year or two due to the change in culture and the failure to properly integrate them into the new business.

How can we help you?

Our Employment Law Team has extensive experience in dealing with TUPE transfers from the very small transfers of one or two employees to transfers involving many hundreds or thousands of staff. Our team of specialist employment lawyers work closely with your internal HR team and the business owners to ensure that the transfer goes smoothly and that all information is passed at the right time with consultation taking place as efficiently as possible.

For incoming employers our team of HR Consultants can then work with your own team and our lawyers to ensure that post transfer integration is successful and that you retain all of the key staff.

Please contact our team on 0345 646 0406 or fill in our online enquiry form and a member of our Team will be in touch.