The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“the TUPE Regulations”) provide employment rights to employees upon the transfer of a business or part of a business and potentially where a contract transfers as well.
If you are a temporary worker, self employed, or an independent contractor, the Regulations may not apply to you. If you are unsure as to your employment status, please contact the Employment Law specialists at Taylor & Emmet for further advice.
The TUPE Regulations encompass two “relevant transfers” – the first being when a business or undertaking, or part of one, is transferred to another organisation, and the second being when a “service provision change” takes place (for example, where a service is outsourced to an external provider).
Information and Consultation
If you are being affected by a transfer, you have the right under the TUPE Regulations to be informed and consulted about the change. This should be done collectively through employee or trade union representatives. You must be informed of any measures relating to the transfer prior to the transfer, including what impact the transfer will have on your position.
The TUPE Regulations apply to a business of any size. Therefore, even if you work in a small shop with only two employees, you share the same rights to be consulted adequately about a transfer as the employees of a large company with a thousand employees.
There is an obligation on both your new and old employers to inform and consult over a TUPE transfer. If a Tribunal finds that there has been a failure to inform and consult they can award up to 90 days pay as compensation.
Your Rights Under TUPE
The TUPE Regulations act to preserve your terms and conditions of employment as much as possible. This means that if TUPE applies the fundamental terms and conditions of your employment and your length of service should be transferred along with the business. You will become the employee of the new employer (the “transferee”) but should work under the same fundamental terms and conditions as you enjoyed when working for your previous employer (the “transferor”). If your new employer changes your terms and conditions, you could have the right to sue for breach of contract, or to resign and claim Constructive Dismissal.
The Regulations specifically provide that if you are dismissed for a reason in connection with a TUPE transfer, your dismissal is automatically unfair. However, if you object to the transfer and refuse to transfer with the business or contract, you will not be deemed to have been dismissed and will lose your legal right to claim.
Liability for the outcome of current disciplinary investigations or grievances, Employment Tribunal claims or Trade Union Collective Agreements will also transfer to the new employer.
Claims for TUPE related dismissals and failure to inform and consult under TUPE needs to be brought within three months of the transfer date.
In the event of a dispute over your employment in relation to TUPE, the Employment Tribunal ultimately have the power to decide whether a TUPE transfer has taken place. You should seek detailed legal advice from a specialist in Employment Law if you think that you have been unfairly affected by a TUPE transfer.