It can sometimes be very difficult to form a view on whether or not the Transfer of Undertakings (Protection of Employment) Regulations (TUPE) apply. Even if it is agreed that TUPE applies, it can still be hard to gauge who should transfer and who shouldn’t. Much of the TUPE case law has arisen from employees arguing that they should transfer in circumstances where they haven’t done so.
If TUPE applies, employees who are assigned to the organised grouping of assets or employees that is being transferred should transfer to the new business. However, there can be difficulties in deciding what is meant by being “assigned” and what amounts to an “organised grouping”. There is no definition of what is meant by being “assigned” and this will be a question of fact to be determined in each case, taking into account a number of factors. Similarly, the question of an “organised grouping” is not something defined in law but case law has established that it requires conscious thought to have been given to how assets or employees are organised within the business.
If you are concerned that there is a business sale and you believe your employment should be transferring but this is not being accepted by your new employer, you should in the first instance commit your concerns in writing. You should explain why you believe you should transfer, namely why you think you are assigned to the relevant organised grouping. The more factual detail you can add to your explanation, the better. We would strongly recommend you take specialist advice from our team at this point due to the complexity of the arguments that can be involved in this area. If you are ultimately correct that you should have transferred, you may have Employment Tribunal claims arising from a failure to inform and consult with you and, depending on how things evolve, unfair or even automatically unfair dismissal.