The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) mean that if your employer’s business, part of their business, or the service provider you work for is transferred to another person or company, your rights as an employee must be protected.
TUPE also ensures that an employer engages in an information and consultation process in good time before the transfer.
If your employer’s business has recently changed hands or you don’t believe there was any or any sufficient TUPE consultation process, our employment solicitors can help. They are experienced in all areas of TUPE and employment rights law.
We understand that your situation is unique, which is why we take the time to understand your circumstances and offer clear and practical advice to help you achieve the best possible outcome.
The TUPE Regulations were brought into UK law as part of a European Directive, and still apply post-Brexit.
The regulations were created to provide protection for and safeguard the rights of employees in the event of a change of employer.
The Regulations try to achieve this by:
If you believe you have been dismissed because of a TUPE transfer, your terms and conditions are being attacked by a new employer or you feel there was no sufficient consultation process, you may be able to make a claim.
For more information, please contact one of our friendly employment rights solicitors.
The employee must be able to show that he or she is either:
Or
It is the job of the employment tribunal to look at these facts and come to a conclusion about your case. It can often be difficult to predict what view a tribunal will take.
The employee must also be able to show that they work within the part of the organisation that has transferred to a new employer i.e. they are assigned to that part. This might involve consideration of:
Business sales are the most obvious transfers protected by TUPE. However, mergers, the granting of franchises, the movement of companies within a group, and the ‘contracting out’ of work, have all been considered as transfers.
TUPE also sets out specific conditions for ‘service provision changes’. There may be a service provision change:
Under TUPE, employees of the outgoing employer will automatically become employees of the incoming employer at the point of transfer. In these instances, the employee should retain their existing terms and conditions of employment, including their continuous service.
If, following a transfer of employees, your new employer seeks to change the terms and conditions of employment to your detriment, you have protection under TUPE. For example, if your new employer attempts to decrease your pay, cut your benefits or reduce your bonus because of the transfer, you may be able to resist those changes and TUPE may prevent those changes from being lawfully made.
Any variations made to your contract are void if the sole reason for the variation was the transfer to a new employer. However, it is important to note that a variation is permitted if it is for an economic, technical or organisational (“ETO”) reason that entails changes in the workforce (e.g. redundancies or changes to job functions or workplaces), and you agree to the variation with your new employer. ETO reasons often include:
Variations are also permitted if the terms of your existing contact of employment allow the employer to make those changes.
If the terms of your contract derived from a collective agreement, your new employer is able to make variations to the collectively agreed terms one year after the date of transfer. However, these changes can only be made if overall they are deemed to be no less favourable.
If you are an employee benefiting from a profit share or share option scheme, you usually have the right to expect that the new employer will introduce equivalent alternatives.
TUPE is designed to protect your rights and ensure you are no worse off in the event your employment is transferred to another employer. However, there is unfortunately still a risk that your new employer may seek to harmonise your contract after the transfer has taken place.
Often, if the business you have transferred to offers less favourable benefits to its existing employees, it may make attempts to change the terms and conditions of your employment to match its existing employees. This is common practice for many new employers, as their existing employees are likely to be unhappy if they learn their terms are employment are less favourable than those who have recently transferred to the business.
Harmonisation can therefore mean giving up favourable terms and conditions of employment that you previously enjoyed. To encourage you to agree to the changes, your new employer may offer new, alternative perks that you didn’t have previously. Alternatively, employers may threaten redundancies or dismissal in order to get you to agree to the changes.
It is a common misconception that employers can make changes to your terms and conditions of employment following a transfer if they wait a set period of time before doing so or attempting to harmonise. Harmonisation is unlawful.
It is important for you to know that TUPE protects you from contractual changes and harmonisation for an indefinite period of time, if the sole or principal reason for the change is the transfer. However, if your employer has an ETO (economic, technical or organisational) reason for the change, they may be within their legal rights to do so.
An employee with a minimum of 2 years’ service is protected from dismissal under TUPE Regulations.
If you have been made redundant solely because of the TUPE transfer, this will automatically be deemed as unfair, regardless of whether you were dismissed before or after the date of transfer. However, if you were dismissed for an ETO (economic, technical or organisational) reason, that has entailed changes in the workplace, (e.g. redundancies or changes to job functions or workplaces) dismissal might be fair and lawful.
An employer might have an ETO defence if the reason for making you redundant resulted from:
It is important to note that any dismissal completely unrelated to the transfer or made for an ETO reason may still be deemed unfair. There are general protections from unfair dismissal. However, such protection will depend on the circumstances of your dismissal.
If your employment is transferred to a new employer, your occupational pension scheme will not normally transfer with it.
However, your new employer will be required by law to provide you access to an alternative pension scheme.
If, at the time of transfer, the business is subject to insolvency proceedings, then it is possible for either your current employer or incoming employer to agree possible variations to your contract. These negotiations will usually take place with an appropriate Trade Union or other employee representatives.
Many employees, however, are not aware that the debts of their existing employer will not pass on to their new employer. This means payments owed, such as wages, redundancy pay and other debts are likely to be paid by the State.
Employees and their representatives have a right to be informed or consulted when a transfer is proposed.
The consultation should provide information on:
If the proposed measures include, for example, changes to the employee’s terms of employment, then consultation must take place. The aim of the consultation is to allow the new employer and employee reach an agreement about any disputed issues.
There are no minimum periods for consultation but it must be started in good time before the transfer.
If there is no consultation or the consultation process is inadequate, employees affected by the TUPE transfer may be entitled to claim a Protective Award of up to 13 weeks’ pay. A Protective Award is compensation for the failure to consult.
If employee representatives have been appointed, they must pursue the claim on behalf of those they represent.
Our team specialises in Protective Awards. If you believe there was insufficient consultation, please complete our TUPE eligibility checker or contact our team today.
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