TUPE transfers for employees

If you are currently undergoing a TUPE transfer, it’s crucial to understand employee rights and obligations, explains Alex Jones, Managing Director of 365 Employment Law.

There are often complex issues involved in a TUPE such as changes to your employment contract, redundancy risks, or disputes over the transfer process.

What is TUPE?

TUPE stands for Transfer of Undertakings (Protection of Employment). It is in place to protect your rights as an employee when you transfer to a new employer. A TUPE transfer happens when:

• Your employer is moving you from your current employer to a new one.

• Some employees are moving to a new employer, but you’re staying in your current role.

• New employees join your organisation because they were transferred from another employer.

You are protected under TUPE if:

• You’re classed as an employee under UK law.

• The part of the business that is transferring is in the UK.

The size of the business you work for doesn’t matter, your rights are protected whether you work for a huge organisation or a small shop.

What happens during a TUPE transfer?

Every TUPE transfer is different, but generally, it follows the same steps:

1. Employers identify who will be affected by the transfer.

2. The employers inform and consult with these employees.

3. The old employer provides the new employer with details about the employees like their age and identity.

4. The affected employees transfer to the new employer, taking their employment contracts and length of service with them.

Transferring to a new employer

If you’re an employee who is transferring to a new employer, it’s important to understand exactly what happens during and after a TUPE transfer.

Pre transfer:

If you’re transferring from one employer to another, your contract will continue. This is because your employer isn’t ending your contract, it’s being automatically transferred to the new employer. At this point, your current employer should give your new employer any specific information about you, also known as Employee Liability Information (ELI).

Your employer must give this information at least 28 days before your transfer. Some employers may ask for more information, such as your national insurance number.

If you do not want to transfer:

If you decide you don’t want to transfer to the new employer, you can refuse. However, if you refuse, you will give up your right to claim redundancy pay and unfair dismissal. It’s therefore a good idea to explore all options, contact ACAS, or get legal advice.

Your employment terms and conditions

Even though you are switching employers, your terms and conditions of employment automatically transfer with your contract. This includes:

• Pay (including overtime)

• Contractual bonuses

• Commission

• Sick leave and pay

• Holiday leave and pay

• Allowances

• Insurance-based benefits.

Any outstanding wages and bonuses, holidays, and enhanced holidays also transfer to your new employer. If your new employer refuses or doesn’t meet the terms of your employment contract, this is a breach of contract, and you can make a claim to an Employment Tribunal.

Informing and consultation

Your current employer must inform staff representatives, such as a recognised trade union or employee representatives, about the transfer. If any changes are proposed that will affect employees, the employer must also consult with these representatives. 

During the consultation, your representatives will discuss any planned changes and the reasons for the transfer with your employer on your behalf.

For transfers on or after 1st July 2024, direct consultation is permitted if:

• There are no recognised representatives

• Either the organisation has fewer than 50 employees or fewer than 10 people are transferring.

Your right to notice under TUPE

You will be informed in advance about a TUPE transfer, however there is no set length of time for this notice. As your employer isn’t ending your contract, they don’t need to give the same notice period as they would in that circumstance. 

Changing your contract

Following a TUPE transfer, employers can negotiate changes to an employment contract through the usual process. However, other considerations may arise if the primary reason for the contract changes is the transfer itself.

TUPE regulations give some protection for an indefinite period, for example, if your new employer wants to change your terms and conditions 10 years later, they’d still need a valid reason to change.

Your new employer may choose to match your terms and conditions to the other staff; however, this can only happen if your terms and conditions improve.

At 365 Employment Law, we offer expert guidance and personalised support through every stage of the TUPE transfer process. We put you and your rights first and ensure a smooth transition. With a deep understanding of employment law, we provide tailored advice and solutions to meet your needs. Get in touch with us now.

www.365employmentlaw.co.uk