TUPE for Employees
TUPE for Employees FAQ’s and Advice
The Transfer of Undertakings (Protection of Employment) (TUPE) Regulations may apply when a company, or part of one, is taken over by another organisation. So what exactly does this mean for the employees affected?
This is where either part or all of an organisation’s process and staff are transferred over to a new employer, either as a result of a sale of a whole business or where there is what is called a ‘service provision change’ (where a contract changes from one company to another).
This happens as a result of the Transfer of Undertakings (Protection of Employment) Regulations (“TUPE”) which are designed to protect employees if the business or a contract changes hands.
Under the TUPE regulations, you will maintain the terms and conditions you currently have unless your new employer has better terms which you can choose to accept.
There is a requirement to inform and consult with elected employee representatives Your employer should consult with your representatives who will feedback to you the points that are discussed.
If your employer does not have any representatives in place, it may be necessary for your employer to hold an election so that the necessary representatives are elected to deal with the consultation process.
Your employer should tell you why the transfer is being proposed, what the implications are of the transfer, what if any differences there may be as a result of the transfer, whether you will be moving to new premises and whether there are any measures likely to be taken by the new employer which will affect you.
Any consultation carried out by your employer has to be in good time to ensure that you have sufficient opportunity to understand what is happening.
No, you cannot be dismissed as you are protected under the TUPE regulations. You may, however, be at risk of redundancy if your new employer decides that it does not need all the staff that are transferring. For this to not be unfair, they will have to have a fair reason as set out in the TUPE regulations.
You may see this referred to as an “economic, technical or organisational” reason which requires changes to the workforce.
You have the right under the TUPE regulations to formally object to being transferred. However, if you do object, this counts as a resignation and your employment will end at the time of the transfer and you will not have a claim against either your former or new employer. You need to think very carefully about doing this as you would not be entitled to any redundancy payment either.
The continuous service of all employees will transfer to the new employer.
Your annual leave entitlement is a contractual term of employment which will transfer to the new employer.
Pensions are not covered by the TUPE regulations. However, you must be offered a broadly comparable scheme
Changes to your terms and conditions can only be made if they relate to what the law refers to as an economic, technical or organisational reason and you are consulted about these changes.
It is relatively difficult to do.
TUPE is a very complicated area of employment law and if you find yourself in this situation, it will be important to make sure you ask all the right questions during the consultation process and you understand what your rights are, particularly if you are engaged on a contract which is now going to be delivered from a location which is far away from where you previously worked.
We can guide you through this situation and let you know where you stand legally and what your options are.