Easy Guide To TUPE For Employees
Has the whole or part of your employer’s business been sold or merged with another company? Is there a change to your job because of re-tendering, outsourcing or insourcing? Are you being transferred or at risk of dismissal?
Relax. Your rights are protected. Your employment contract should remain the same before and after the transfer.
There are rules that govern the transfer of employees from one business or another. If you get dismissed as a result of the transfer, you can probably make a claim for unfair dismissal.
The law covering this situation is called TUPE, which stands for the ‘Transfer of Undertakings (Protection of Employment)’ Regulations 2006, and is pronounced too-pee.
Let’s start with a couple of case studies before we dig into the detail…
Case study 1
Ms Kaur worked as a cashier for H&W Wholesale, but was dismissed on the day that the stock and employees were transferred to Hare Wines Ltd.
She made a claim for automatic unfair dismissal, which was upheld in the employment tribunal.
In law, every case is individual.
This particular situation was complicated by the fact that Ms Kaur had a bad working relationship with a colleague, Mr Chatha, and Hare Wines assumed this would continue after the transfer so they “didn’t want her”, and argued that her dismissal was for personal reasons.
However, the Court of Appeal agreed with the original tribunal decision that she was dismissed with the transfer being the sole or principle reason.
What this means to you
There has to be a genuine economic, technical or organisational reason for you to be dismissed from your job.
If you are dismissed near to the transfer date, there’s a high chance it will count as automatically unfair.
If you’ve already been going through the disciplinary process, and the timing coincidentally results in dismissal near the transfer date, that might count as a fair dismissal that’s unrelated to the transfer.
Case study 2
Thomas Vale was the main contractor on a building contract for Sandwell.
Initially, they subcontracted various painting and decorating work to Inex Home Improvements Limited.
In November and December some years back, Inex exercised its contractual right to temporarily ‘lay off’ employees who were working on the Sandwell contract.
The lay off was envisaged to be until the next tranche of work was issued in January. However, for unknown reasons, the work was allocated to a different subcontractor, even though it was substantially the same as Inex had performed until then.
Mr M Hodgkins & 10 others took their case to the employment tribunal, who decided that – because they were on layoff, and not an organised grouping of employees working at the time of the transfer – that it wasn’t covered by TUPE.
The Employment Appeal Tribunal disagreed, and decided that a temporary absence immediately before a change of service provision – whether it’s due to holidays, temporary sickness or being laid off – does not prevent employees from constituting an organised grouping of employees under TUPE.
(Note that your employer can only lay you off or put you on short-time working if they have a contractual right to do so.)
TUPE: Who, what, when, why and how
Those are a couple of real-life stories to help put you in the picture. Now let’s answer some of the most common questions that employees want to understand:
OK, so when does TUPE apply?
The first case study above is an example of a business transfer. The second is a service provision transfer, when work is re-tendered, outsourced or insourced.
Those are the two situations when TUPE is there to protect employees.
How will you know if TUPE is on the cards?
Under the TUPE regulations, affected employees or their trade union representatives (or formally elected employee representatives where the employer is a micro-business or there is no recognised trade union) MUST be informed or consulted.
Your employer must communicate, in writing:
- Details of the transfer process, when it will occur and the reasons behind it
- Any social, economic or legal implications that concern affected employees e.g. change in location or risk of redundancies
- Any measures that both or either of the incoming and outgoing employers expect to take that concern their employees (even if there are none)
- The number of agency workers present (if any), the departments they are part of and the type of work they do
What happens to your contract when you’re transferred?
On transfer, you will usually become an employee of the incoming employer, with the same terms & conditions as you had under your outgoing employer. You shouldn’t lose any rights or responsibilities, and your years of service will continue to accrue.
After the transfer, the new employer may have some employees on a different employment contract, and wish to harmonise them. Under TUPE, this can’t happen if the transfer is the reason for the change. They can only change your contract if there’s an economic, technical or organisational reason to do so.
If your employer makes significant and fundamental changes to your employment contract, and you have at least two years of continuous service, you can resign and make a claim for constructive dismissal. This can count as unfair dismissal under TUPE.
However, please note that, in general, constructive dismissal cases can be hard to win – please see the links below for more information. If you’re in this situation, please talk to us before you resign and we’ll advise you about the best thing to do.
What if there are redundancies and dismissals?
In any business transfer, there’s always a risk of redundancies and perhaps dismissals.
Redundancies
If your outgoing or incoming employer is making (or intending to make) 20 or more redundancies within a 90-day period, they must consult with employees indirectly through representatives such as a recognised trade union or other appointed representatives.
Where there are fewer than 20 employees being made redundant within a 90-day period, the employer must consult with employees individually, but there are no specific time limits in which they have to do so.
Dismissals
As stated above, if you’re dismissed as the result of a transfer, it will be automatically unfair and you can make a claim for unfair dismissal.
As employment lawyers who only ever act for employees, we can help with that.
Please give us a call (the initial conversation is free) and we’ll let you know your chances of winning your case, what do do next, and how much compensation you might receive.
Related reading
For more on the subject of TUPE, you might like to read our related articles:
- What is TUPE?
- What does TUPE mean?
- What is constructive dismissal?
- Can I claim for constructive dismissal if I resign?
- I want to leave my job
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