TUPE for Employees in England & Wales

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If the business you work for changes hands, you’ll probably be wondering what this means for you, your job and your future with your new employer.

This is known as a Transfer of Undertakings (Protection of Employment) regulations, usually shortened to TUPE. As an employee, you may be protected by these regulations.

Generally, if you are protected by TUPE, your new employer has to keep your terms of employment the same as they were previously.

If you’ve been part of a TUPE transfer recently and you think your new employer has not treated you properly under the TUPE regulations, contact one of our Employment Law Solicitors who can help you understand where you stand and make a claim if you have one.

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When Does TUPE Apply?

TUPE regulations apply in two situations. They are:

  • Business Transfers – When a whole business, or a part of a business is transferred to new owners or merges with another company, the TUPE regulations will apply. 
  • Provision of Services Transfers – There are a couple of situations where TUPE will apply in the transfer of service provisions. They are:
    •   When service provision is outsourced and a contractor takes over something that was originally in-house.
    •   A new contractor takes over the provision of services from the existing one.
    •   When the service provision is insourced and the business takes over.

The employer who is transferring the business is usually referred to as the outgoing employer and the one taking over the business is referred to as the incoming employer. This is because each of them has responsibilities under the TUPE regulations and it helps to understand which one is which.

How Does TUPE Protect Me?

When your employer changes in the process of TUPE, you will automatically become an employee of the new company. Your terms and conditions of employment will remain the same and your continuous service will apply and continue with your new employer.

After the transfer, your new employer will probably find that your terms are different to those of their existing employees and will probably want to harmonise these. But under the TUPE regulations, your terms of employment are protected indefinitely if the sole reason for any change they’re making is the transfer.

An incoming employer can of course enhance your terms of employment to bring them in line with their other employees, or bring their existing employees terms in harmony with yours.

If you are facing TUPE at work, your employer has to consult with you through either Trade Union representatives or employee representatives. If none of these are in place, elections must take place to appoint representatives specifically for the consultation. A micro business, which is defined as having fewer than 10 people, does not need to consult with its employees before TUPE.

You should be given information in writing and the information should explain:

  • That TUPE is happening and give an approximate date
  • Why it’s happening
  • Any implications for employees such as a change in location or potential redundancies
  • The steps the outgoing and incoming employers will take regarding their employees, even if there aren’t any
  • Any agency staff numbers, their departments and the type of work they do
  • Any measures that the incoming employer is considering that will affect employees

If they do not consult with you properly, you may have a claim against them.

What If I’m Dismissed or My Employment Terms Change?

If you find that you’ve been dismissed either before or after a TUPE transfer, and the main reason was because of the transfer, this is automatically unfair.

If the incoming employer has changed your terms and conditions significantly for the worse either before or after the transfer, you can terminate your employment with them and claim for unfair dismissal.

You should get legal advice from a specialist Employment Lawyer who can explain clearly what your position is, whether your employer has breached the TUPE regulations and what options you have available to you.

If you are part of a Collective Agreement that has been negotiated through collective bargaining, this should transfer to your new employer and could include flexible working arrangements, training for union representatives and any similar agreements.

Your new employer can renegotiate these collective agreements after one year as long as they are not less favourable for the employees concerned.

Employment Tribunal Claims

There are strict time limits in place for all TUPE related claims. You will need to bring any claim to an Employment Tribunal within three months of the date of the incident occurring.

To make a claim at an Employment Tribunal, you will also need to complete the ACAS Early Conciliation process. This is to try to resolve your claim before you end up at Tribunal. The time limit on your claim is paused whilst this process is completed.

In addition, if you are claiming for Unfair Dismissal, you will need to have had continuous service with your employer of more than 2 years to bring a claim.

If your employer did not consult you or give you the correct information as is required of them by the TUPE regulations, you can make a claim against them at an Employment Tribunal. The award will be up to 90 days’ pay. You do not need to be employed for any minimum period of time to make this type of claim. 

You could take your employer through the civil courts process for breach of contract, where the time limits are more generous. You will normally have six years to bring a claim.  

TUPE claims are complex and the time limits are short so if you are concerned about your situation and you are going through the TUPE process, call our Employment Law Solicitors who can discuss your options with you.

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