The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) is a piece of legislation that is designed to protect employees when the assets of a business are sold or a function is outsourced. In summary, TUPE gives employees automatic rights to transfer to the new employer, enhanced protection against dismissal, certain rights to be informed and consulted with prior to any transfer, and also limits the new employer’s ability to alter employees’ terms and conditions post-transfer. If you are impacted by the uncertainty of a takeover, merger, restructure or outsourcing and would like advice on your rights then we can assist.
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TUPE Help for Employees
The below section provides common questions that employees have around the Transfer of Undertakings (Protection of Employment) Regulations 2006 - also known as TUPE.
Can you be dismissed under TUPE?
Yes. Although TUPE does give you special protection if there is a transfer of the business or part of the business, there is still a potentially fair reason for dismissal provided for in the regulations. A dismissal may be fair if the employer can argue that the dismissal is for an economic, technical or organisational reason which entails a change in the workforce. This could be a relocation of the business, a redundancy situation or a major restructure which affects staff. A fair process would still need to be followed for any dismissal to be fair. If the only reason for dismissal is the TUPE transfer then the dismissal would be automatically unfair. This would give you the right, if you have two years of continuous service, to claim unfair dismissal.
How long do you need to consult for TUPE?
There is no set timescale for informing and consulting but consultation must be meaningful. This means that any representative or individual consulted (if there are no trade union or employee representatives elected) needs to be provided with information about the transfer and any proposed changes and given the opportunity to discuss the impact of the changes.
Do you need 2 years service for TUPE?
No. Most TUPE protection can apply to all employees, however, you need two years of continuous employment to claim unfair dismissal even if the dismissal is TUPE related.
What rights do I have under TUPE?
You have a number of protections under TUPE. These include the right to be informed about the transfer and the identity of any new employer and consulted regarding any changes. Consultation will be with recognised trade unions or elected employee representatives unless employees do not select to elect representatives.
There is an automatic transfer of contractual terms and jobs to the new employer. So, TUPE also protects your contractual terms (with the exception of old age, invalidity and survivor's benefits in occupational pension schemes) meaning that any new employer cannot change your terms just because of a TUPE transfer.
Any changes would need to be because of an economic, technical or organisational reason entailing changes in the workforce or because the terms of the contract itself allowed the particular change.
If you are dismissed because of the TUPE transfer this will be automatically unfair unless the reason was an economic, technical or organisational reason (ETO) entailing changes in the workforce. Even if there is an ETO reason for a dismissal then a fair process must still be followed.
If you are affected because of a substantial change to your working conditions to your material detriment, because of the TUPE transfer, this can give a right to resign and claim unfair dismissal under the TUPE regulations even if there is no breach of your contract by your employer.
TUPE protection substantially increases your protection and if you feel unfairly treated do contact us to discuss these rights.
TUPE Help for Employers
The below section provides common questions that employers have around TUPE.
How long do you need to consult for TUPE?
There is no set timescale for informing and consulting in a TUPE situation but consultation must be meaningful. This means that any representative or individual consulted (if there are no trade union or employee representatives elected) needs to be provided with information about the transfer and any proposed changes and given the opportunity to discuss the impact of the changes. The information must be provided “long enough before the relevant transfer” to allow that to happen. If there are to be large scale redundancies of 20 or over then these can trigger a consultation period under the redundancy legislation of 30 or 45 days depending upon the numbers concerned.
Who is responsible for TUPE consultation?
The employer is responsible for informing and consulting with their existing employees. The prospective employer will be obliged to provide details of any measures or changes they wish to make to the employees contract but the primary duty to inform and consult is with the employer. If a transfer impacts on not only the transferring employees but employees in the business they will be transferring to both employers may have a duty to consult with their own workforces on the effect of the transfer on the employees.
How do I start a TUPE process?
A good first step would to be assess who might be impacted by the transfer in an asset sale or service provision change. If your staff are going to transfer then you will need to provide the new employer (the transferee) with Employee Liability Information (ELI) no less than 28 days before the transfer. If you are the transferee receiving the transferring staff you then have to provide details of any measures that you intend to take after the transfer.
What happens at a TUPE consultation?
TUPE consultation is held with the recognised union or employee representatives. Only if no union is recognised and no representatives are elected by the employees will informing and consulting take place with the individual employees.
The representatives are informed that there will be a transfer, the date (or proposed date) when it is to take place and the reasons for it. The representatives should be informed of the legal, economic and social implications of the transfer for the affected employees. These will include issues such as changes to contractual terms, effects on pay and changes to the place or patterns of work.
These also amount to measures (whether envisaged by the transferor or transferee) that trigger consultation requirements. The effects of the transfer on agency workers must also be considered with representatives.
Information is provided to the representatives to allow them to consult in an informed manner. The discussions are undertaken with a view to seeking agreement.
Here at Julian Taylor HR we're a small but very experienced team of employment law solicitors that are highly experienced dealing with TUPE. What makes us different to other firms is that you're going to be working directly with one of us - we won't pass your case off to a junior, or someone else working behind the scenes.
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Speak to TUPE Solicitors based in Oxford.
Do you want to speak to someone to get legal help regarding TUPE? Here at Julian Taylor HR we’ve helped countless employees and employers to understand their TUPE protections. Contact us today if you would like some help.