Published 1st May 2020
TUPE stands for the Transfer of Undertakings (Protection of Employment) Regulations, the main purpose of this is to protect employees if the business for which they are employed changes hands. In simple terms, TUPE preserves employees’ terms and conditions when a business or undertaking, is transferred to a new employer.
Employees who are employed in the undertaking which is being transferred have their employment transferred to the new employer. Employees can refuse to transfer, but this is dependent on the circumstances of the case and this may also lose them valuable legal rights. You may not always be caught under TUPE and this is often a contentious issue, so if you are not sure whether you should be or not, contact us for an initial free assessment.
Case Study – am I covered by TUPE?
“A courier collects and delivers for a business, but the packages are picked up or delivered by a number of different couriers on an ad hoc basis. The courier isn’t protected under TUPE.
A cleaner is employed by a company that decides to use an outside cleaning company instead. They’re likely to be protected under TUPE.”*
It is common for an employee’s place of work to change following a TUPE transfer. Where the change in location is significant an employee can argue that this is a substantial change in their working conditions to their material detriment and bring a claim for constructive dismissal. TUPE has recently been changed to allow a change in work location to qualify as an ETO [which means an Economical Technical or Organisational reason], which may give rise to further flexibility in this area.
TUPE also preserves rights under the contract of employment, statutory rights and continuity of employment and includes employees’ rights to bring a claim against their employer for unfair dismissal, redundancy or discrimination, unpaid wages, bonuses or holidays. What this means to you, if you are being transferred under TUPE to a new employer and you have any issues about them changing your terms, the claims you have would be against the new employer, not the old once.
I am an employer what do I need to do?
It is important for employees to be aware that they have the legal right to transfer to the new employer on their existing terms and conditions of employment and with all their existing employment rights and liabilities. The idea behind TUPE is that the new employer steps into the shoes of the old employer, so send them everything you have on your current workforce, be fully transparent.
In terms of employers taking over, is it crucial that they know all about the employees that they will be taking, and they need to make sure that the contract protects them from any employment liabilities which may have arisen with the old employer? The previous employer is required to provide the new employer with written details of all employee rights and liabilities. This would include, copy of contract, personal details, payslip, details of holidays and any claims, grievances and disciplinaries. This information must be given no less than 28 days before the day of transfer.
The main thing employers need to be mindful of in this process, in order to make sure they are complying with TUPE is to inform and consult with staff. Certain specific information must be provided to the representatives long enough before the transfer happens in order to allow time for consultation. If there is a failure to inform and consult, a complaint can be put forward to the Employment Tribunal and if successful can result in a reward of whatever compensation they deem to be appropriate for the employer’s failure.
ACAS has created a helpful guide chart which you can access here.
There’s also some helpful guidance on the government website.
Written by the Thrive Tribe.