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When Does TUPE Apply?
TUPE stands for the Transfer of Undertakings (Protection of Employment) Regulations. There are two situations when the TUPE regulations may apply:
1. Business Transfers
Business transfers are when a business or part of a business moves to a new owner or merges with another business to make a brand new employer.
2. Service Provision Transfers
Service provision transfers can apply in a number of ways:
- A contractor takes over activities from a client
- A new contractor takes over activities from another contractor
- A client takes over activities previously done by a contractor.
The TUPE provisions are likely to apply in each of these circumstances.
Terms and Conditions of Employment
When TUPE applies, as an employee of the outgoing employer (original employer) you will automatically become an employee of the incoming employer (new employer) at the point of transfer. Your terms and conditions of employment will remain the same and you will keep your continuous service.
The TUPE regulations protect you from the incoming employer trying to change your terms of employment for an indefinite period, providing the main reason for the change is the transfer.
Information and Consultation
Employers must inform and consult with employees about any transfer that may take place. The information you, as an employee, should receive would include:
- That there is going to be a transfer
- When and why the transfer will take place
- Any social, legal or economic implications for the affected employees, for example a change in location or risk of redundancies.
This is not an exhaustive list and you should seek legal advice if you are informed of a potential TUPE situation and are concerned about your employment.
Employers are often able to minimise or prevent redundancies and other dismissals when transfers take place. However, there will be occasions when they cannot be avoided.
If you are dismissed either prior to or after the transfer and the sole or main reason for the dismissal is the transfer, your dismissal will be automatically unfair.
If once you have transferred (or prior to the transfer) the incoming employer seeks to change your terms and conditions to your detriment (e.g. a reduction to your pay) you may have the right to end your employment and claim constructive unfair dismissal at an Employment Tribunal. We would always recommend seeking advice prior to resigning.
If you do not want to work for the incoming employer you can refuse. This in effect means you are resigning from your job and you would not be able to claim unfair dismissal. If you decide to do this then you do not need to give your contractual or statutory notice. You just tell your employer before the transfer day and your employment ends at the time of the transfer.
If you have been notified that your job is likely to transfer, or if you have transferred and your terms are changing, our Employment Solicitors can help you.