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 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 or call us on 03300 020 863.

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