What are the Transfer of Undertakings Regulations and when does someone transfer under TUPE?

The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) stem from European legislation and were brought in to safeguard employees’ rights where one business is transferred to another.  The Regulations have three main concepts:

 

1. The automatic transfer principle: employees move from the business being sold to the purchasing business, which takes on all of their rights, liabilities and obligations.

 

2. Protection for employees against dismissals in connection with transfer.

 

3. The obligation for the businesses involved to inform and consult with representatives of affected employees.

 

TUPE applies not just where an entire business is being sold but can also apply where just one part of a business is being sold.  It needs to be shown that there is an economic entity which is being transferred to a third party and which retains its identity following that transfer.  TUPE can also apply in outsourcing situations too.  If a business asks a contractor to do work on its behalf, moves that work to another contractor or brings that work back ‘in house’, that can amount to a TUPE transfer too.

 

The rules to determine whether or not the Regulations apply are complex and involve consideration of many different factors.  If they apply, anyone who is employed within the transferring business immediately before the transfer will automatically move across and from that point onwards, it is as if the acquiring business has been their employer from their start date.

 

We have a lot of experience on advising on whether or not TUPE applies and, if it does, what implications that has for employees within the two businesses.  If you think your employment may be subject to changes under TUPE and would like some advice on how it might affect you and what it might mean, please get in touch and we would be happy to advise further.