TUPE transfers (transfer of undertakings of protected employment) are where your employer sells the business to a new owner, and the impact that that has on your employment status. Our expert employment solicitors can help you with all aspects of TUPE transfers whether you are an employer or employee. So please reach out.
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TUPE – or the Transfer of Undertakings (Protection of Employment) Regulations – applies to any qualifying transfer of a business or part of a business from one owner to another. A qualifying transfer is where there is a business sale or a change in contractor, and the business will still be basically the same afterwards. TUPE means that employees will automatically transfer to the buyer or incoming contractor, with all their terms and conditions intact.
There is no set definition of measures, but they are understood to be any changes to how employees will do their job, or where, or when, and anything to do with how things work at work. So, if the new employer is going to change the payroll date, that’s a measure. If the new employer plans to make redundancies, that’s a measure. Any changes to employees’ contracts in connection with the transfer – that’s a measure.
TUPE only applies to employees who are employees under employment law. It doesn’t apply to “workers” or independent contractors. Employment status – whether you’re classed as an employee or worker or contractor – is a really tricky area.
We have recently seen cases where an individual classed by the employer as a “worker” needs to firstly argue that they are an employee before they can move forward to argue that they are entitled to TUPE rights – or other rights only given to employees like statutory maternity pay, or the right to claim unfair dismissal.
There is no minimum TUPE consultation period. Indeed, if the incoming employer doesn’t intend to take any “measures” there’s no obligation to consult at all – they need only inform employees of the impending transfer.
A seller has to tell employees that their employment is going to transfer to the buyer or incoming contractor. If the buyer doesn’t intend to take any measures, there’s no additional obligation to consult with the employees.
A buyer has to tell the seller about any “measures” they intend to take regarding incoming employees. If there are any measures proposed, then the buyer will need to consult with the affected employees (which might include their own existing employees). Sometimes this is done before the transfer and sometimes after depending on the circumstances.
The seller has to give the buyer “employee liability information” at least 4 weeks before the transfer takes place. This information should help buyer and seller ensure that they take the right steps in terms of consulting with employees.
If TUPE applies, then any employees assigned to the business or part of the business that is being transferred will automatically transfer to along with that business. It’s a breach of TUPE for a buyer to reject any employees employed in the business transferring immediately before the transfer.
In reality, sometimes buyers will negotiate on who will transfer, and what happens to those employees who don’t transfer – this is more complicated and outside the scope of these FAQs – please contact for advice.
Yes – as in employers are able to dismiss employees whenever they want – the question is whether dismissal are fair and/or non-discriminatory and/or not in breach of TUPE.
The starting point is that any dismissal in connection with a TUPE transfer is automatically unfair. However, if there is an “economic, technical, or organisational” reason for the dismissal, it can be not automatically unfair – though could be ordinarily unfair if there isn’t a fair reason and/or a fair process wasn’t followed.
There’s no set definition of an ETO reason, however, redundancy could well be an organisational and/or economic reason. All this means though is that redundancy after a TUPE transfer may not be automatically unfair – it could still be ordinarily unfair if there’s no fair reason to dismiss and/or a fair process wasn’t followed.
No – you can choose to reject the transfer, but it’s essential to be careful how you do so. If you’re considering not transferring then you should get legal advice on what to do to best protect your position whilst achieving what you want.
If you reject a transfer, your employment will end at the point of transfer. It’s not a dismissal, nor a resignation. As it’s not a dismissal, it can’t be an unfair dismissal.
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Whether you’re an employee or employer, and you’re looking for expert employment law advice – QLAW CAN HELP! Reach out in whatever way best suits you. We’re looking forward to speaking to you very shortly!