If you are currently undergoing a TUPE transfer, it’s crucial to understand employee rights and obligations. As experts in all thing’s employment law, 365 Employment can help clarify complex issues such as changes to your employment contract, redundancy risks, or disputes over the transfer process. Let us help guide you through your TUPE transfer and ensure your rights are protected.
What is TUPE?
TUPE stands for Transfer of Undertakings (Protection of Employment). It is in place to protect your rights as an employee when you transfer to a new employer. A TUPE transfer happens when:
- Your employer is moving you from your current employer to a new one.
- Some employees are moving to a new employer, but you’re staying in your current role.
- New employees join your organisation because they were transferred from another employer.
TUPE employee rights
You are protected under TUPE if:
- You’re classed as an employee under UK law.
- The part of the business that is transferring is in the UK.
The size of the business you work for doesn’t matter, your rights are protected whether you work for a huge organisation or a small shop.
What happens during a TUPE transfer?
Every TUPE transfer is different, but generally, it follows the same steps:
- Employers identify who will be affected by the transfer.
- The employers inform and consult with these employees.
- The old employer provides the new employer with details about the employees like their age and identity.
- The affected employees transfer to the new employer, taking their employment contracts and length of service with them.
When do TUPE regulations apply?
Your rights are protected under TUPE if you are legally classed as an employee in the UK, and part of your organisation that is transferring is in the UK. TUPE can apply in both public and private sectors and may also protect workers.
Public sector transfers
TUPE applies to transfers from the public sector to the private sector or between public authorities such as moving from the NHS to a local authority such as a role in the town council.
It doesn’t, however, apply to internal public sector transfers where the employer remains the same, such as within the Civil Service.
Type of TUPE transfers
There are two main types of TUPE transfers:
Business transfers
Business transfers happen when a business, or part of a business, moves to a new employer. TUPE applies if your employer changes, and you will automatically transfer to the new employer.
Service provision changes
A service provision change happens when a new contract is taken over, such as:
- Outsourcing: a service is moved to a new contractor.
- Insourcing: a contract ends, and the service returns in-house.
- Retendering: a new contract takes over an existing one.
Examples of this include services like catering, security, office cleaning, machinery maintenance, and much more. TUPE doesn’t apply to contracts for the supply of goods only or short-term tasks.
Defining an ‘organised grouping of employees’
To be able to transfer under TUPE, you must be part of an ‘organised grouping of employees’. This is a group of employees who are carrying out work for a client.
If part of your job is transferring, whether TUPE applies depends on whether you’re part of this group. The client must remain the same for TUPE to apply. If you’re unsure about your transfer status, speak with your employer or seek advice from an employment law specialist.
Working abroad
If you work abroad but your employer is based in the UK, or you’re being transferred abroad, TUPE could still apply. However, this can be a complex area, so it’s important to seek legal advice on your specific situation.
Transferring to a new employer
If you’re an employee who is transferring to a new employer, it’s important to understand exactly what happens during and after a TUPE transfer.
Pre transfer
If you’re transferring from one employer to another, your contract will continue. This is because your employer isn’t ending your contract, it’s being automatically transferred to the new employer. At this point, your current employer should give your new employer any specific information about you, also known as Employee Liability Information (ELI). It includes:
- Your identity
- Employment terms
- Collective agreements
- Disciplinary and grievance records
- Legal action
- Claims
Your employer must give this information at least 28 days before your transfer. Some employers may ask for more information such as national insurance number.
If you do not want to transfer
If you decide you don’t want to transfer to the new employer, you can refuse. However, if you refuse, you will give up your right to claim redundancy pay and unfair dismissal. It’s therefore a good idea to explore all options, contact ACAS, or get legal advice.
If your final decision is that you want to transfer, you need to tell your current employer in writing. They will treat this as if you’re resigning and they’ll need to inform the new employer that you won’t be transferring. If possible, tell your employer as early as possible to see if any other options are available to you. The later you leave it, the less likely another option will be on offer.
If there are no options available for you, your employment will end on the date your transfer takes place.
When the transfer happens
Your employer will automatically take over your employment contract on the date of your transfer, including your period of continuous employment. Your new employer must inform you in writing that there has been a change of employer.
Your employment terms and conditions
Even though you are switching employers, your terms and conditions of employment automatically transfer with your contract. This includes:
- Pay (including overtime)
- Contractual bonuses
- Commission
- Sick leave and pay
- Holiday leave and pay
- Allowances
- Insurance-based benefits.
Any outstanding wages and bonuses, holidays, and enhanced holidays also transfer to your new employer. If your new employer refuses or doesn’t meet the terms of your employment contract, this is a breach of contract, and you can make a claim to an employment tribunal.
Transferring your pension
Whatever your pension has built up to, it is protected.
However, whether your pension will transfer over to the new employer, will depend on whether you have a personal pension or a workplace pension.
If you have a personal pension, this will automatically transfer to your new employer, and they must pay the same amount into your personal pension as before the transfer.
If you have a workplace pension, it will likely not transfer to your new employer as it’s exempt from TUPE. This means your new employer doesn’t have to continue the same pension, but they must provide a reasonable alternative.
After the transfer
After a TUPE transfer, you might decide you don’t want to work for your new employer. If this is the case, it will be treated the same as resigning and your employment will end. You will need to tell your new employer that you are resigning in writing.
Once you’ve handed in your notice, you’ll usually have to work your notice period. You’ll also lose any continuity of employment and will be paid any outstanding wages and holidays built up.
Informing and consultation
Your current employer must inform staff representatives such as a recognised trade union or employee representative, about the transfer. If any changes are proposed that will affect employees, the employer must also consult with these representatives.
During the consultation, your representatives will discuss any planned changes and the reasons for the transfer with your employer on your behalf.
What inform and consult means
Inform – your current employer must tell you the facts about the transfer before the transfer takes place.
Consult – your employer must ask for and consider your feedback on the transfer and changes. This won’t discuss the fact that the transfer is happening but will discuss changes like location, payment dates, and working hours.
How this affects you
If you’re transferring to a new employer, your current employer must inform you or your representatives about the transfer and provide a ‘measures letter’ which details any planned changes.
If you stay with your current employer whilst others transfer in or out, your employer should inform and consult with you or your representatives on any changes to working practices.
Who your employer should inform and consult
During the TUPE transfer, your employer should consult with any recognised trade union (or appropriate employee representative if no recognised trade union is available) about the transfer and which employees it will affect.
If neither of these are available, your employer should arrange an election.
Direct employee consultation
In some cases, your employer can consult with you directly about a transfer, depending on the size of the business and the number of employees involved.
For transfers on or before 30th June 2024, direct consultation is allowed if:
- Your organisation has less than 10 employees
- There are no recognised trade unions or employee representatives
Alternatively, your employer might choose to hold an election to choose representatives.
For transfers on or after 1st July 2024, direct consultation is permitted if:
- There are no recognised representatives
- Either the organisation has fewer than 50 employees or fewer than 10 people are transferring.
Alternatively, your employer could hold an election to vote for representatives.
Considering your suggestions
If you have suggested changes, your employer doesn’t have to make them. However, before they make a final decision, they must show that they’ve:
- Discussed any changes with you
- Listened to your suggestions and fully considered them
- Tried to reach an agreement
If they cannot come to an agreement, your employer should provide you with the reasons for rejecting your suggestions and explain why in writing.
Information you should receive
Your current employer should let you know the following in writing:
- That the transfer is happening including when and why
- How the transfer will affect you
- How the transfer will be carried out
- Whether there will be any reorganisation
- The number of agency workers employed
How you’ll be represented
Your trade union or employee representatives will represent you in the consultation by:
- Gathering your views
- Discussing the employer’s transfer proposals
- Collaborating with other representatives to form a collective response
- Meeting with your employer to provide feedback
- Keeping you informed throughout the process
Your right to notice under TUPE
You will be informed in advance about a TUPE transfer, however there is no set length of time for this notice. As your employer isn’t ending your contract, they don’t need to give the same notice period as they would in that circumstance.
Changing your contract
Following a TUPE transfer, employers can negotiate changes to an employment contract through the usual process. However, other considerations may arise if the primary reason for the contract changes is the transfer itself.
If the transfer is the main reason
Your employer can only make changes because of the transfer if they improve your terms and conditions or there is an ‘economic, technical, or organisational’ (ETO) reason involving a change in the workforce.
TUPE regulations give some protection for an indefinite period, for example, if your new employer wants to change your terms and conditions 10 years later, they’d still need a valid reason to change.
ETO contract changes
Your employer can change your contract after a TUPE transfer for ETO reasons, but only if there’s also a workforce change like redundancies or restructuring.
Matching condition to existing staff
Your new employer may choose to match your terms and conditions to the other staff; however, this can only happen if your terms and conditions improve.
If the transfer is not the main reason
If a contract change isn’t related to the transfer, TUPE regulations don’t apply and your employer can negotiate these changes through the usual process, but only if there is a valid reason and both you and your employer agree to the changes.
Your redundancy rights
Before a TUPE transfer
Your current employer can’t make you redundant before your transfer if your new employer requests it. If this happens, this qualifies as unfair dismissal.
After a TUPE transfer
After the transfer, your new employer can only make redundancies related to the transfer if there is a genuine redundancy situation and an ETO reason. For example, a change in workplace location or too many employees for the same role.
If redundancies are unrelated to the transfer, they can follow the normal process without an ETO reason. Transferred staff must be treated the same as existing employees with fair selection and proper procedures.
Redundancy pay
If you’re made redundant after a TUPE transfer, then your new employer is responsible for your redundancy pay. This is based on the length of service and includes the time you worked for your previous employer.
You’ll also get enhanced redundancy pay if it’s in your contract that you carried over.
Redundancy consultation process
If you have been affected by redundancy, your employer must consult you, even if you’re not directly at risk. If 20 or more redundancies are planned within a single establishment over 90 days, your employer must also conduct a collective consultation with a recognised trade union or employee representative to explore ways to avoid or reduce redundancies.
This consultation must begin at least 30 days before any redundancies occur.
Redundancy rights if you do not wish to transfer
If you don’t want to transfer to your new employer, you can refuse. However, you will have no right to claim redundancy pay or unfair dismissal.
If you refuse, you will need to tell your employer in writing, and this will be taken as your resignation.
If your employer is insolvent
Insolvent means your employer cannot pay their debts. If this happens, your rights will depend on the type of insolvency and whether this happened before or after your TUPE transfer.
Non-terminal insolvency
When a company is taken over during a ‘non-terminal insolvency’ where the business continues to operate, you will automatically transfer to the new employer with your existing terms and conditions. This includes:
- Your original start date
- Wages
- Holiday pay
If you were transferred before insolvency, your new employer is responsible for any money owed to you. However, if the transfer occurred after insolvency, you could claim the money owed from the government’s Redundancy Payment Service. For this, you’ll need a case reference number from the insolvency practitioner of your former employer.
Terminal insolvency
During a terminal insolvency, you will not transfer to a new employer if:
- Your current employer goes into liquidation and the business closes down
- Your current employer becomes bankrupt
Instead, you should be made redundant.
Why choose 365 Employment Law
At 365 Employment Law, we offer expert guidance and personalised support through every stage of the TUPE transfer process. We put you and your rights first and ensure a smooth transition. With a deep understanding of employment law, we provide tailored advice and solutions to meet your needs. Get in touch with us now.
FAQs
Can my new employer change my contract after a TUPE transfer?
Your new employer can only change your contract if there are valid economic, technical, or organisational (ETO) reasons.
Will I lose my job if a TUPE transfer occurs?
TUPE is designed to protect jobs, but if redundancies are necessary, they must be for valid ETO reasons and follow proper procedures.
Why should I seek legal advice during a TUPE transfer?
Legal advice can help you understand your rights, ensure compliance with TUPE regulations, and address any concerns about changes to your employment.
What should I do if I’m unsure whether TUPE applies to my situation?
If you’re uncertain about TUPE transfers, it’s important to seek legal advice to determine whether these regulations apply to you and what steps you should take.