Can you refuse TUPE?
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TUPE is Transfer of Undertakings (Protection of Employment) Regulations 2006.
TUPE means that all employees employed in a business immediately before a sale will transfer automatically to the buyer. However, you can refuse to accept the transfer.
Does an employee have to agree to TUPE?
No, you can object to a TUPE transfer if you wish.
TUPE was introduced to protect employees’ rights when the business they work for is sold or transferred to a new owner. Without TUPE, employees would have been made redundant at the point of the sale or transfer. The idea is that those job losses are prevented and employees’ rights are protected by ensuring that they automatically transfer to the new owner.
However, you can choose to leave at the point of transfer and not go over to the new owner. Your employer can’t force you to transfer if you don’t want to.
Can you refuse TUPE and take redundancy?
That isn’t really how it works. If you object to the TUPE transfer, your employment ends at the point of transfer. It’s a different question whether your role is redundant before or after the transfer.
It’s possible that a redundancy in connection with a TUPE transfer would be a fair dismissal – see here for more details. But a redundancy is a type of dismissal, not something the employee can choose to take.
Another possibility is to object to the transfer and ask for a transfer elsewhere in your employer’s organisation.
Having said this, it’s not impossible that an employer offers to do a deal with you if you object to the transfer, but this is more about the employer ensuring you can’t come back and bring a claim. In this case, your employer might respond to you saying you don’t want to transfer by offering to pay you, say, what you would have got if made redundant, on condition that you sign a settlement agreement to close off any potential claims. But you can’t require your employer to do this – it’s your choice to object to the transfer.
It’s best to tell your employer in writing that you object to TUPE.
How do you object to a TUPE transfer?
You can object to transferring telling your employer or the buyer that you don’t want to transfer. You don’t have to give a reason, though if you want to try to engineer a deal, it might be helpful to do so. It’s best to tell your employer or the buyer in writing, before the transfer, though, so there’s no doubt over whether you are objecting.
For instance, if you don’t want to transfer because you’ve been told during the TUPE consultation that you’ll have to commute a long way to attend the buyer’s office, then that might be a redundancy, and your employer should be treating it as such, within the TUPE framework.
What happens if you object to a TUPE transfer?
Your employment will end on the date of the transfer. There is no need to work out your notice period.
It isn’t a dismissal for employment law purposes, nor is it a resignation. As it isn’t a dismissal it can’t be an unfair dismissal or a redundancy. You won’t be able to bring an unfair dismissal claim. There is a chance that you have a claim if you’ve objected and resign in response to a serious breach by your employer.
It’s possible that any restrictive covenants in your contract of employment won’t be enforceable against you if you object to the transfer. This is because your contract won’t have transferred to the buyer. Your employer would be unlikely to have any business interest in enforcing your restraints, having sold the business, so it could be easier for you to compete after the TUPE transfer.
So, if you’re objecting because of any complaints you have about how you’ve been treated, or because there will be a long commute, you should get legal advice before committing to objecting to the transfer. Your lawyer can help you to ensure that you’re putting yourself in the best possible position, especially if you want to engineer a deal with your employer.
Need more help?
If you need more help with the subjects covered here then do reach out to our expert employment solicitors. You can speak to our employment solicitors online via email employment@qlaw.co.uk or call us on 03300 020 863.
Hello
Am I right in thinking that if my employer is closing the business, staff are being t u p e accross. Should we the-staff have had 45 or more days notice of the transfer
Hi – if your employer is closing the business because they’ve sold it, and the sale is a TUPE transfer, then basically, the employees should automatically transfer to the buyer. Employees aren’t redundant in that case, because TUPE makes them transfer to the buyer – precisely to avoid them being made redundant.
On the other hand, if the business is closing, and there isn’t a TUPE transfer (eg the business is just closing, there’s no buyer), then employees would be redundant because of the complete closure of their employer, and that’s “just” a redundancy, not related to TUPE at all.
Please get in touch so we can give you specific advice about your and your colleagues’ situation, at employment@qlaw.co.uk – we’d love to help!
We have a TUPE transfer with our employer and he advised us of the transfer happening 27 days before the transfer will take place which is the end of this month. Is this too short a timescale? If we do not agree on the new owner and hand in notice then will the notice period end at the end of July?
There is no set timeframe for information and consultation under TUPE. If consultation is necessary (ie if the buyer intends to take any “measures” – which basically means make any changes regarding your employment), then seller and buyer should consult for a long enough period to make it meaningful, though the buyer might do this after the sale.
You can’t refuse to accept the new owner – who your employer sells the business to is up to them. You can choose not to accept the TUPE transfer. This would mean that your employment ends at the point of the sale. It isn’t a dismissal, or a resignation, and you’d have no claims at all. It’s best to get advice before refusing to accept a transfer, because there may be a better way to approach your concerns, depending on the circumstances.
We can’t comment on whether this is all ok in your case without full details and taking you on as a client, so do email employment@qlaw.co.uk with your contact details and the name of your employer so we can take this forward for you.
Hi,
My employer (large logistics firm) has lost the contract I work on. They have lost the contract to another logistical firm who are moving operations 140 miles away (2h 45m commute)…
I have not been offered another position within the company I work for – only the position within the firm that has won the contract.
What is the likelihood of my employer having to offer me a redundancy package?
I have been with my employer for nearly 25 years.
Many thanks
Hi Daryl. Thanks for your comment.
Under TUPE your employment transfers automatically to the new employer, with all your terms intact – including length of service.
However, clearly it’s not possible for you to commute 140 miles to work. Such a huge distance probably amounts to an “economic, technical or organisational reason entailing a change in the workforce” for TUPE purposes. That’s basically a redundancy situation.
As such, we’d expect that one or other organisation will talk to you about redundancy – sometimes which employer does this will depend on what they’ve agreed amongst themselves, or with the client organisation for which they’re providing logistics services. Based on what you’d told us, we expect that you’d be redundant because of the disappearance of your workplace, where the replacement workplace is so unreasonably far away that it isn’t a suitable alternative for you.
Given your long service, if you were made redundant, you’d be entitled to the maximum statutory redundancy payment, and maximum statutory minimum notice (or whatever your contract of employment says). Some employers will pay additional compensation as well, and you’d usually be required to sign a settlement agreement to get that compensation.
You could enquire whether your old employer has any suitable alternative vacancies for you to avoid redundancy, or if the new one has anything nearer, but assuming there’s nothing available, we suspect that this would be a redundancy situation.
Do email us at employment@Qlaw.co.uk if you would like to instruct our employment team to advise you and we’ll arrange an exploratory chat so we can talk through how we can help and our likely fees.
PS you may find our reply to the other comment on this page useful too!
(NB – our articles and any comments thereon do not represent legal advice and should not be taken as such. If you require legal advice about your particular case, please make contact with us).
Hi we have been given 30 days notice of TUPE to a new company.
We are based in Crewe, Cheshire, the new company is based in Dartford, Kent.
We naturally will be unable to commute everyday to Kent, where do we stand under the terms of TUPE and refusing on these grounds?
I have been chosen as the employee representative and would appreciate as much advise as possible.
Notification date was: 02/10/2023
Consultation date will start: 06/10/2023
We have been given no other information by our employer as yet.
Hi Keith. Thanks for your comment.
We can’t give actual advice without taking you on formally as a client, but as a general rule, the right to reject a TUPE transfer should only be used in certain circumstances and when you’ve had advice on the options that may be available to you.
When you reject a TUPE transfer, your employment ends “by operation of law” meaning that TUPE ends your employment – it isn’t a resignation and more to the point it isn’t a dismissal. As it isn’t a dismissal it can’t be an unfair dismissal, and you wouldn’t have any claims for unfair dismissal.
Given the distance between your current and new employer, and assuming that the new employer stops operations and closes your current site, we can see how you’re concerned about what’s going to happen. This is precisely why both old and new employers are obliged to inform and consult with you over any measures (changes) they propose.
Assuming that consultation is going to start soon, now reps have been chosen, you should expect more details to be given to the employee reps during the process.
One thing we’d anticipate is that consultation will provide full details of whether the current site is going to remain open. You may find it will and nothing will significantly change.
However, if the new employer plans to close the site, then that may be an “economic, technical or organisational” change for TUPE purposes, which “entails changes in the workforce”. That’s basically a redundancy situation. Coming back to whether you should reject a TUPE transfer, if you’re at risk of redundancy, it’s probably worth hanging on to see what happens, because you’ll be in a better position if made redundant than if you walk away by rejecting the transfer.
Do email us at employment@Qlaw.co.uk if you would like to instruct our employment team to advise you and your colleagues and we’ll arrange an exploratory chat so we can talk through how we can help and our likely fees.
PS you may find our reply to the other comment on this page useful too!
Hi, the company I have my contract with was bought out 2 years ago, the new company is finally in the process of TUPE and getting all staff moved over to their contracts. However, I already resigned 2 months ago and working a 6 month notice, I have already refused to agree to the TUPE so was wondering if I am within my rights to leave immediately when the transfer happens and subsequently still be paid for the remainder of my notice period?
Hi there and thanks for getting in touch. If you refuse a TUPE transfer your employment ends automatically at the point of the transfer. However, here it sounds as though the actual transfer happened a while ago and your new employer is just changing your contracts to their own standard form.
We’d need to see the documents and get full details from you but you may not be in a TUPE transfer situation any more, though TUPE may still be relevant. We can see why you’d think there’s little point in signing a new contract while you’re on your notice period. We can certainly help you look to achieve your aim of getting out before the end of your notice period with pay in lieu.
Please email us at employment@Qlaw.co.uk with further details and we’ll arrange a time for an initial chat to talk through how we can help.
(NB – our articles and any comments thereon do not represent legal advice and should not be taken as such. If you require legal advice about your particular case, please make contact with us).
Hi ,
My company is changing from an private partnership to an LLP . If I do not accept the TUPE as I want to leave can my company do anything . My TUPE date is 31st of December , when do i need to give notice ?
Thanks for your comment on the website.
We note that your company is changing to an LLP from a private partnership and you’ve been told that you’re to transfer across to the LLP under TUPE.
As explained here you can reject a TUPE transfer if you wish.
If you do so, your employment ends automatically at the point of the transfer – it isn’t a resignation or a dismissal.
As it’s not a dismissal it can’t be an unfair dismissal, so you’d have no claims for dismissal.
Depending on the circumstances, there can be better options to extract you from the organisation.
We can only give legal advice once we’ve fully onboarded you and you’ve agreed our terms, and our fees.
If you’d like to email us with your employer’s name and address, at employment@Qlaw.co.uk we’d be delighted to arrange a time for an exploratory chat about the situation and how we can help.
(NB – our articles and any comments thereon do not represent legal advice and should not be taken as such. If you require legal advice about your particular case, please make contact with us).
Hi. My local authority school is being academized and therefore the new Academy Trust are taking us through the TUPE process. My role, School Business Manager, does not exist in the new staffing structure of the Trust, and therefore they have offered me an alternative role. I asked the question “if I choose not to take the new role, does that mean this is a redundancy situation given that you don’t have SBM’s in your staffing structure?” .
Their reply was – Under TUPE law this isn’t a redundancy situation as we have offered you a role that transfers 60% of your current role.
Can you please advise if this is correct as I cant find that statement anywhere that I am looking and believe it should be a redundancy.
Many thanks,
Sarah.
Thanks so much for your comment. We can certainly advise on your situation. There aren’t hard and fast rules as to the exact % but where all or most of your role transfers, then you would automatically transfer. They say that 60% of your role transfers, so the starting point is that they say that you automatically transfer, albeit not into your same role. From that perspective, they say it isn’t a redundancy because there’s a role there for you.
We can advise you on what you may be able to do in this situation and look into what your options may be once you’re formally onboarded as a client. Do get in touch if you’d like to go ahead and we look forward to helping you.
Hi, Our school is looking to change our contract cleaning contract from mornings to evenings for operational reasons and would like to know how does TUPE apply if i engage with a new contractor as our current contractor is very much underperforming. Thank you
Hi, and thanks for your comment.
TUPE usually applies to a change in contractor, though it isn’t uncommon for the change to be driven by unsatisfactory performance. Cleaning contractor companies are generally used to this situation, and it should form part of your discussions with prospective contractors. Ask how they deal with TUPE, and whether they take on poor-performing employees and then dismiss or performance manage them, or if they refuse to take on any employees from the outgoing contractor.
We would need to review the situation to advise, and assuming that TUPE applies, there are usually ways to mitigate the impact, including agreeing on terms about who pays to dismiss employees, and whether an incoming contractor can put the same employees on your sites, and so on.
Do get in touch if you’d like to arrange a time to discuss this in more detail.
question
does my employer have to let me Tupe.?
my employer says they don’t want me to go to a new employer, who has bought part of the company in the area I cover.
I’m in this area more than 50% of the time.
can my employer refuse to let me move, especially if I agree with my employer?
thanks in advance
Thanks for getting in touch. Your employer can’t refuse to let you move because TUPE operates automatically – if TUPE applies to you, then you transfer automatically. No one can agree to do something different because TUPE just overrides it. You can choose to reject the transfer but that means your employment automatically ends, which doesn’t sound like what you want. We’d need more information to advise you, and can only comment generally here. But we can certainly help you work out how to get where you want to be, so just send us an email with more details to employment@Qlaw.co.uk and we’ll be in touch to arrange a time to chat things through.
My wife is a carer for an autistic boy. Her role is solely transporting him from his place of residence to his school, she is currently employed by the boy’s parents via a charity that provides funding, HR & Payroll services. The boy has moved to a nearby group home and my wife has been transporting him from there to school for the last couple of months, but still employed by the parents. The charity providing the funding have decided to transfer the transport of the boy to the group home, who will do so by Minibus with several other children. The group home has refused to TUPE my wife and has told the parents they need to give her notice.
Is this in any way legal??
It seems they should be taking her on via TUPE, then after a consultation period, they can make a driver redundant, but must evaluate all drivers in their employ via matrix criteria for redundancy.
This sounds like a potential issue about TUPE and/or redundancy, and requires investigation for us to advise. We’d need full details and to get your wife formally onboarded as a client in order to advise. Please email us at employment@Qlaw.co.uk with more information and any documents so we can confirm a fixed fee for the first stage of work. We look forward to helping you.
I will be 71 in March this year and have worked for my employer for 10 years as an Independent Advocate we are 10 months into a contract which was only signed in January this year. When we were given a choice in December which we only found out about in January that we either work with the new company the way they want us to work or we walk away from the contract. We are a provider along with two other providers we do not work for the main contract holder. We made the decision to step away as the main contract holder has made decisions regarding the way we work without discussion or consultation.
I have had a meeting this morning with my boss who has told me about TUPE at my age I do not want to work with or for the contract holder and would prefer to take redundancy can I be forced to comply with TUPE?
I am not in good health but loved my job and would have liked to remain working for as long as I could but I I do not feel I could work with the main contract holder particularly as they have forced the situation were we are now in due to their unreasonable actions in requesting that we work their way when we don’t work for them we work with them on a contract they provided which none of my staff or myself have had a chance to view or read and as stated was only signed in last month. I am the lead Advocate with a team of 5 advocates and an administrator working under me. I would appreciate some advice regarding our legal position please.
Thanks for getting in touch. We can certainly help whether you may be caught by TUPE and what your options are to get you where you want to be. Please email employment@Qlaw.co.uk to arrange a free 20-minute exploratory call so we can talk things through and give you an idea of our fees.
HI, we are updating our contract for cleaning sevices and we are moving to a new contractor, however the old contractor says we need to TUPE all the emplyees currently working under their company. however we only want to keep a few of them to be transffered under the new contractor basedon their performance. Do we have right to do that? And what is the argument that we present? Thanks
Thanks for getting in touch, we can certainly help with your query.
The client doesn’t usually employ the transferring employees – they’re usually regarded as going straight from the old contractor to the new one. It’s not uncommon that the reason for a new contract is that the services weren’t up to standard with the old contractor. Those old and new contractors have obligations under TUPE and all employees are entitled to transfer with all their terms and conditions intact. There are circumstances where employees’ employment can be ended fairly though. We can advise on the situation and what to do once you’re formally onboarded.
Please get in touch with us at employment@Qlaw.co.uk and we’ll arrange an exploratory chat to talk through how we can help and our likely fees.
hi, Just quick question I work for a privately owned hotel ans gym, recently the business was sold and now have new owners…we have not been tuped over and have all been issued p45s…but we still remain in our job roles…we also had to fill in new starter forms….therefore loosing service years,outstanding holiday pay etc…were we made redundant by our previous employer…its a very grey area for us all…just need some answers….thanks
Hi there, thanks for getting in touch. We can certainly help with your query, however we can’t give legal advice via the website. We’ve emailed separately and look forward to hearing from you so we can get you onboarded and advise once we’ve got all the details we need.
Hi and thanks for this article. The article states that restrictive covenants are not enforceable by the company that a business is transferred to if the employee doesn’t accept TUPE. I have asked about this elsewhere and been told that the right to enforce such restrictions will transfer despite the employee resignation. Could you give any more detail about what may affect this? My personal situation is that my employment is proposed to be TUPE’d in 2 months, I am hoping there is an opportunity to resign and be free of non-compete restrictions.
Hi all – this is a great page for TUPE. I wondered if I’m transferring to a new business through TUPE (just going through the initial consultation at the moment, before the transfer in the middle of transfer) can I apply to internal vacancies and avoid the TUPE by being offered a new role in a department not impacted by the TUPE?