TUPE applies where there is one of two types of “relevant transfer”:
- A “business transfer”: the transfer of a business, undertaking or part of a business or undertaking where there is a transfer of an economic entity that retains its identity.
- A change in service provider, for example, a client engaging a contractor to do work on its behalf, reassigning such a contract or bringing the work in-house.
Some transfers may be both a business transfer and a service provision change.
WHAT DOES THIS MEAN FOR YOU AND WHAT SHOULD YOU DO NEXT?
If TUPE applies:
You and any other employees employed in the “organised grouping of resources or employees” would transfer to the new company on your existing terms of employment, unless:
- You object to the transfer
- You are dismissed before the transfer, provided you are not dismissed because of the transfer or you are dismissed because of the transfer but there is an economic, technical or organisational reason
You would transfer on your existing terms of employment, and with your period of continuous employment unbroken.
There may be provisions provided under a collective agreement or relevant clauses in your contract. Any dismissal will be automatically unfair where the sole or principal reason for the dismissal is the transfer itself and there is not an economical, technical or organisational reason.
Should you be informed?
Your employer would have to inform and (if it proposes any “measures”, which is pretty wide) consult representatives of its affected employees in relation to the transfer.
If your place of work has fewer than 10 employees it may be able to inform and consult with you directly. If your workplace or management team fails to do so an employment tribunal can award up to 13 weeks’ actual pay for each employee that’s been impacted. If there is a recognised trade union, your employer would have to inform and consult with the trade union representatives or if there is no recognised trade union, your employer will have to carry out elections so that the employees can elect employee representatives.
DO YOU NEED ADDITIONAL SUPPORT CONCERNING THE TUPE PROCESS?
If you believe that you are or will be involved in a TUPE, we can help.