Your Essential TUPE Cheat Sheet
Brought to you by The People Scientist
Understanding TUPE: An Overview
- Purpose: TUPE exists to protect employees’ rights when the business or part of the business they work for changes hands.
- Scope: Applies to all businesses in the UK, regardless of size.
When Does TUPE Apply?
- Business Transfers: When a business or part of a business moves to a new owner or merges with another business.
- Service Provision Changes: When a client engages a contractor to do work on its behalf, reassigns such a contract, or brings the work in-house.
Key Provisions:
- Employee Rights: Employees of the previous employer automatically become employees of the new employer at the same terms and conditions.
- Dismissals: Dismissals connected to the transfer are automatically unfair unless for an economic, technical, or organizational (ETO) reason entailing changes in the workforce.
- Informing and Consulting: Legal obligation to inform and consult representatives of the affected employees.
Responsibilities of the New Employer (Transferee):
- Continuity of Employment: Recognize the continuity of the employees’ period of employment.
- Existing Terms and Conditions: Honor the existing terms and conditions of the employees’ contracts.
- Pensions: Specific rules apply to pension rights.
Responsibilities of the Old Employer (Transferor):
- Employee Liability Information: Provide the new employer with specific information about the transferring employees.
- Consultation: Engage in consultation with employees’ representatives about the transfer.
Employee Liability Information Must Include:
- Employee identity and age.
- Employment particulars under the Employment Rights Act 1996.
- Information about disciplinary actions, grievances, and legal actions taken within the last two years.
- Employee claims against the transferor of which the transferor is aware.
Practical Tips:
- Due Diligence: Thoroughly understand the workforce implications before a transfer.
- Communication: Regular, clear communication with staff is crucial to manage expectations and reduce uncertainty.
- Legal Advice: Seek professional legal advice to navigate complexities of TUPE.
top 10 TUPE faqs
Here are the top 10 frequently asked questions (FAQs) related to TUPE (Transfer of Undertakings (Protection of Employment) Regulations):
What is TUPE?
- TUPE stands for the Transfer of Undertakings (Protection of Employment) Regulations. It’s a UK law that protects employees’ rights when the organization or service they work for changes hands.
When does TUPE apply?
- TUPE applies during business transfers (e.g., when a business is sold) and service provision changes (e.g., when a contract for services is moved from one provider to another).
Are all employees protected under TUPE?
- Generally, all employees employed by the business immediately before the transfer are protected. This includes part-time and fixed-term employees.
Does TUPE apply to temporary employees?
- It depends on the circumstances. If temporary employees are part of the transferring entity’s workforce and meet certain criteria, they may be covered.
What rights do employees have under TUPE?
- Employees have the right to have their terms and conditions of employment transferred to the new employer and to be protected against dismissal solely due to the transfer.
Can employees opt-out of transferring under TUPE?
- Yes, employees can refuse to transfer to the new employer, but in most cases, this will be treated as a resignation, and they may not be entitled to redundancy or unfair dismissal claims.
Are changes to contracts allowed post-transfer?
- Any changes to employment contracts because of the transfer are usually invalid unless for an economic, technical, or organizational (ETO) reason necessitating changes in the workforce.
What are the obligations for employers in a TUPE transfer?
- Employers must inform and consult with employee representatives about the transfer, provide legal information about the transferring employees, and adhere to employment law and regulations.
How does TUPE affect redundancy procedures?
- Redundancies related to the transfer are subject to standard employment law, but dismissals solely due to the transfer are automatically unfair unless for ETO reasons.
Does TUPE apply to the transfer of assets?
- TUPE typically applies to the transfer of a business or service, not just assets. However, if the transfer of assets amounts to the transfer of a business or part of one, TUPE may apply.
Remember, while this FAQ provides a basic understanding of TUPE, it’s important to consult with legal professionals for specific advice, as the application of TUPE can be complex and situation-dependent.