TUPE refers to the Transfer of Undertakings (Protection of Employment) Regulations 2006. These were later amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014.
These rules were created to protect employees’ rights when the organisation they work for transfers to a new employer. This could be due to a merger, or if a business is bought or sold.
TUPE regulations also apply in outsourcing situations, known as a ‘service provision transfer’. This happens when:
- A contractor takes over activities from a client (outsourcing)
- A new contractor takes over activities from another contractor (re-tendering)
- A client takes over activities from a contractor (bringing a service back in-house)
This area of the law can be complex and legal advice is often sought to ensure all communications, consultations and changes are in keeping with the regulations.
When TUPE applies, the employees of the outgoing employer automatically transfer, becoming employees of the incoming employer. The terms and conditions of employment will remain the same and the employee’s continuity of service will also be unaffected by the transfer.
Changes to contracts
TUPE protects against any changes for an indefinite period if the reason is based solely on the transfer. Employers seeking to change terms which are unrelated to the transfer should seek legal advice in the first instance.
Employment Liability Information
The outgoing employer must provide detailed information about transferring employees and this is known as employee liability information. It must be up to date, accurate and secure. This should include the identity and ages of employees, certain terms and conditions of employment, any disciplinary action, grievances raised, legal actions taken, and information contained in any collective agreements.
Informing and consulting with affected employees
TUPE requires both the outgoing and incoming employer to undertake a process of informing and consulting with those employees affected by the transfer. Please note employees who do not transfer may also be affected by the transfer if, for instance, their roles and duties change. The outgoing and incoming employers are required to discuss and explain the effects of the transfer and what the implications will be for the employees. Where there are ten or more employees affected by a transfer then the informing and consultation process should be done through employee representatives (trade union representatives or those employees elected by their fellow colleagues).
Dismissals and redundancies
Dismissals and redundancies are at times unavoidable, however the law around this is complex. If the sole reason for dismissal is the transfer then it will be automatically unfair. If redundancies are necessary then a consultation process must be adhered to.
Basic guidelines relating to TUPE can be found on the ACAS website.
Due to the complex nature of TUPE it is advised that businesses seek legal advice as early as is possible. GA Solicitors’ employment team is experienced in all areas of TUPE and has steered organisations large and small through the process.