TUPE - Business Transfers and Service Provision Changes for Employees

At O’Donnell Solicitors, we understand that workplace changes such as transfers of businesses or services can be upsetting and confusing. Our Employment Team is here to protect your rights and ensure that you are treated fairly during workplace changes.

What is TUPE?

TUPE stands for the Transfer of Undertakings (Protection of Employment) Regulations 2006. This is a key piece of legislation aimed at protecting employees when the business they work for transfers to a new owner, or when a service they work on is outsourced, brought in-house, or reassigned to a new provider.

TUPE ensures that employees are not disadvantaged by a change in employer. The key protection afforded by the TUPE Regulations is that employees automatically transfer to the new employer on their existing terms and conditions or employment, and with their existing continuity of employment, and cannot be dismissed simply because of the transfer.

When does TUPE apply?

TUPE applies to business transfers, when a business or part of a business is sold or transferred to a new owner, and service provision changes, when a service is outsourced, brought back in-house, or transferred to a new provider.

What are the key rights for employees under the TUPE Regulations?

TUPE provides a number of important protections to employees.

Contracts of employment will transfer to the new employer on the same terms and conditions. This includes pay, benefits, working hours, holiday entitlement, pension rights (except occupational pensions), and continuity of employment. The new employer cannot change terms and conditions simply because of the transfer.

Employees cannot be dismissed solely because of the transfer. If an employee is dismissed for a reason connected to the transfer, it will be automatically unfair unless the employer can show an economic, technical, or organisational (‘ETO’) reason requiring changes to the workforce.

The current or new employer must consult with affected employees (or their trade union or representatives when appropriate) about the transfer and how it will affect you. Information must be provided covering the reason for the transfer, the legal, economic, and social implications for employees, and any measures that they plan to take such as changing terms and conditions of employment or making redundancies.

Employees have the right to object to transferring to the new employer. Doing so means that the employee’s employment will not transfer and will end at the date of the transfer. Objecting employees have no automatic right to compensation or redundancy pay.

What are the consequences of breaching the TUPE Regulations?

If an employer breaches the TUPE Regulations, employees may be able to make the following claims:

• If an employee is dismissed because of the transfer or for a reason connected to the transfer, the dismissal is automatically unfair and the employee may claim unfair dismissal compensation unless it is for an ETO reason.

• If there are failures to comply with the obligations to inform and consult with employees, trade unions and/or employee representatives about the transfer, employees may make claims to the Employment Tribunal and may be awarded up to 13 weeks’ gross pay in compensation.

• If an employer attempts to change term and conditions of employment because of the transfer, the changes are likely to be void, and employees may be able to pursue claims for breach of contract and constructive unfair dismissal.

• If the new employer refuses to recognise the employees’ continuity of employment or their existing terms and conditions of employment, employees may bring claims for breach of contract or failure to comply with TUPE.

• If an employee is subjected to detriment (meaning being treated unfairly or discriminated against) because of the transfer or because they have asserted their rights under TUPE, they may bring a claim for detriment under the Employment Rights Act 1996.

• If an employee is made redundant because of the transfer and the redundancy is not for an ETO reason, they may be able to claim a redundancy payment and/or unfair dismissal.

• Whilst TUPE does not transfer occupational pension rights, employees may have protections under the Pensions Act 2004 if the employer fails to provide equivalent pension arrangements.

How can O’Donnell Solicitors help?

Our Employment Team has extensive experience in advising employees on their rights during TUPE transfers. We provide practical, bespoke advice about your rights and how a TUPE transfer will affect you. If those rights are breached, we will help you to claim the compensation that you deserve.

Contact Us

If you would like to discuss your rights around a TUPE transfer affecting your employment, contact our Employment Team today at 01457 761 320 or e-mail enquire@odonnellsolicitors.co.uk.