What is TUPE?
You may have received a letter from your employer advising you that the business or part of the business is to be transferred to another organisation and that TUPE will apply. This is a confusing term and difficult area of the law.
TUPE refers to the ‘Transfer of Undertakings (Protection of Employment)’ Regulations 2006. The TUPE regulations protect your existing contract if the business, part of a business or service you work for, transfers to a new employer. Regardless of the size of business or company, employees are still protected under TUPE regulations.
This means that during the change of employers, TUPE regulations are there to protect employees by ensuring that when they are transferred to the new employer, most of the rights and conditions in their contracts transfer as well.
We have provided below an outline of the law on TUPE that you may find useful.
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TUPE Regulations
If an employee is involved in a transfer, these regulations are there to protect the employee’s rights by:
- Ensuring their job transfers over to the new company
- Transferring employment terms and conditions as well
- Continuing their employment and there is no unfair dismissal by reason of the business transfer
- Informing and consulting when there is a proposed transfer
When does TUPE apply?
There are two types of transfers that are protected under TUPE (1) Business transfers and (2) Service provision transfers. The transfers must take place from a UK-based company in order for employees to be protected under TUPE.
Business Transfers:
The TUPE regulations apply if a business or part of a business is transferred from one employer to another, or merges with another business to create a new company.
Service Provision Transfers:
The TUPE regulations apply in the following situation:
- Outsourcing- a service previously carried out by your employer is given to a contractor
- Re-tendering- A contract is assigned to a new contractor
- Insourcing- A contract is carried out in connection with a single specific event or shot-term assignment.
Strictly speaking, under service provision change, you will only be protected if you can be clearly identified as completing the service that is being transferred.
TUPE Protection- What does TUPE Protect?
Right to be informed
It is an employee’s right to be consulted and informed when there is a proposed transfer. Even though there is no set timeframe in TUPE, the employer must inform/consult with employees through appropriate elected representatives such as a trade union rep or a formally elected employee representative before the transfer. The information about the proposed transfer must be given in written.
If the employer fails to inform employees about the TUPE transfer, the employee may be entitled to make a claim. Yet, this would need to be brought within three months of the transfer date.
Protection of Terms and Conditions
During the transfer and after the transfer, the terms and conditions of the employee’s contract are protected. Usually, following a transfer, employers recognise that the transferred employees have different terms and conditions with the other staff. In these cases, employers wish to change or harmonise the terms and conditions of the transferred employee’s contract. However, under TUPE, terms and conditions are protected against change and harmonisation. There is no time limit preventing the employer to make these changes, so long as this is not related to the transfer. Any such changes relating to the transfer will be void, even if the employee is in agreeance with the changes.
An employer is, however, permitted to change the terms and conditions where there is an economic, technical or organisational reason to do so (an “ETO” reason).
There is no definition of an ETO in the regulations. Government guidance is that ETO reasons are could include reasons relating to the profitability of the new employer’s business (an ‘economic’ reason; the equipment or processes used by the new employer operates (a ‘technical’ reason) or the management or organisational structure of the new employer’s business (an ‘organisational’ reason).
What Can You Do?
During the transfer process, employees might feel that their rights or contract has been infringed upon, or even been victims of unfair dismissal. If you feel that your rights or contract have been infringed upon or you have been subjected to unfair dismissal, then you might be protected by TUPE and can make a claim. It is important to seek legal advice to discuss your situation and if you are entitled to make a claim.
Even if you are unsure about being protected under TUPE and you are involved in a transfer, it is still important to seek legal advice.
How We Can Help
Our employment solicitors are experienced in this area and by contacting us we will be able to offer you a free initial consultation. During this initial consultation, we can assess your situation, provide you legal advice, and advise you with the prospects of your case. If you do decide to take your case forward, our solicitors will assist you throughout the legal process to ensure that you receive the best possible legal support.
We have a number of options regarding funding a case (see here) and have also arranged an insurance policy which will protect you against the risk of having to pay Tribunal fees should your case be lost.
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