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 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!
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.
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.