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What Rights Do the TUPE Regulations Protect?

TUPE
6 mins to read

The TUPE Regulations ensure that your job is transferred to a new employer if the company you work for changes hands. They also make sure that your employment terms are not made worse by the new employer.

Explore how the regulations affect you, and what employment rights you have under them.

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What is TUPE?

TUPE, which stands for Transfer of Undertakings (Protection of Employment), is a set of regulations that provide employment rights to employees when their employer changes as a result of a transfer of an undertaking.

So, when one company is bought by another, you are afforded a reasonable amount of protection as an employee. The new owners cannot simply walk in and dismiss everyone.

What rights do the TUPE Regulations protect?

For employees, the government’s TUPE regulations offer a range of protections that should help ensure continuity. Your working conditions should not be adversely affected once a transfer is complete.

Protections include:

Contract of employment

Once your employment transfers from one company to another, your contract, and everything in it, must remain essentially the same. Your new employer cannot suddenly change your job title, cut your pay or holiday allowance, or increase your hours. TUPE also protects continuity of service, so related benefits, such as holiday entitlement and bonuses, are not reset to zero on day one.

Early changes to terms and conditions

TUPE prevents your existing employer from changing the terms of your employment before the transfer to bring them in line with the contracts of employees at the company buying the business.

Employer obligations

Under TUPE, if your old employer has guaranteed certain provisions, such as letting you work from home, these obligations transfer to the new employer. The aim is to make the process as seamless and fair as possible for employees.

This also extends to pay dates. They can be brought forward so that you are paid earlier, but usually cannot be delayed, as this would negatively affect workers. In some cases, employers may be able to change your pay date if there is an economic, technical or organisational (ETO) reason for doing so.

Location can also become an issue. If the new employer asks you to commute to a different workplace and it is too far away, the company must explore and consult on alternative arrangements or possible solutions. If they dismiss you, a tribunal may decide this amounts to unfair dismissal.

However, not all changes of work location will be considered unreasonable, and you may have to be flexible to some extent. You should speak to a solicitor to find out whether you may have a claim.

Redundancy and resignations

Your new employer is not allowed to dismiss you if the reason is related to the transfer. There is an exception if there is a genuine economic, technical, or organisational reason, in which case redundancy may be lawful. However, the new employer cannot simply use this as an excuse to dismiss transferred staff and would need to show strong evidence.

To be valid, the reason must relate to the company’s performance, processes and equipment, or structure.

If you believe you have been made redundant and the main or only reason is the transfer, you should seek legal advice.

You are also under no obligation to transfer to the new company. If you choose not to, this will usually be treated as a resignation.

Consultation

Your old employer should consult you about the transfer and how it will affect your work. Good communication from senior management, while not always a legal requirement, can make the process much easier.

There is no specific consultation period before a TUPE transfer unless the new employer seeks to rely on ETO grounds to make redundancies. In that case, there must be a 30-day consultation period, or 45 days if there are more than 100 employees. Consultations may be carried out directly, or through an HR or union representative.

Employment claims

If you have made a claim against your old employer, for example for discrimination, you may be able to bring that claim against the new company after the transfer, even if the issue arose before the transfer.

Pensions

TUPE protects your existing pension rights in some respects, and after transferring you can continue making contributions as before. However, the new business is not obliged to provide exactly the same pension scheme.

How long does TUPE protection last after a transfer?

Technically, you are protected for as long as you remain with the business. Your new employer is not allowed to make changes to your employment terms and conditions if those changes relate to the transfer.

However, if the business changes your contract years later, it may be harder to argue that those changes are still transfer-related, and you should seek legal advice.

If your employment terms come from a collective agreement, such as one made by a union, the new employer may have the right to renegotiate these after one year, provided the overall package is no less favourable.

A change can be made within one year if it benefits you, such as a promotion. After accepting a promotion, you may move onto a contract controlled by your new employer, and TUPE may no longer apply in the same way.

When does TUPE apply and not apply?

It does not matter how big or small your employer is. TUPE regulations apply to all businesses. There are two types of transfers covered by TUPE: business transfers and service provision changes.

Generally, TUPE applies when:

  • A company is bought by, or merges with, another, unless it maintains its existing identity.
  • Work is outsourced or brought in-house.
  • Existing services are contracted to a new provider.
  • The business has a clearly established presence in the UK, even if you work outside the UK.

TUPE regulations do not apply when:

  • The identity of your employer does not change, despite a change in ownership.
  • Only company shares are transferred.
  • The employer changes suppliers of goods for company use.
  • A service is provided for a one-off or short-term activity.
  • There is no organised group of employees working in the UK.
  • Activities or services are significantly broken up and reallocated, changing the nature of your work substantially.

What if TUPE regulations have been breached?

Most TUPE transfers are seamless, and most employees should not notice any major changes to their day-to-day duties. The business culture may change, but your work and pay should not.

However, if you feel your employment rights have been affected by a change in ownership, you should seek legal advice straight away from a professional who understands your circumstances.

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