Your TUPE rights

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014, employees’ jobs and terms and conditions are protected, and their continuity of employment is maintained when a business changes ownership.

A TUPE transfer may affect you if:

• You are transferring from your current employer to a new one; or
• Your colleagues are transferring to a new employer, but you stay employed with your existing employer and don’t transfer or
• Other employees are transferring to your employer

TUPE regulations apply differently, depending on the work you do, and your contract.

Public sector transfers

Transfers within the public sector are typically not protected under TUPE, however some transfers from the public sector into the private sector are.

Business transfers

When a business, or part of a business moves from its existing employer to a new one, employees are protected under TUPE regulations. This includes mergers – where two organisations combine to become a new one.

To be protected under TUPE regulations, the identity of your employer must change during the transfer process.

This applies to an organised grouping of employees and this group may be a single employee.

Service provision changes

A service provision change can occur when:

• A service that is provided in-house e.g., cleaning is awarded to a contractor.
• A contract ends and is then given to a new contractor.
• A contract ends and is then transferred to be in-house.

During a service provision change, employees are not protected under TUPE if the contract is:

• For the supply of goods that the company uses e.g., food suppliers.
• For a single event e.g., a catering company being used for a work event.
• The service that was being provided has changed e.g moving from the provision of selling hot food to a vending machine selling cold sandwiches only.

During a transfer, employees who can be clearly identified as providing a service that is being transferred to the new owner are protected under TUPE.

Your rights are protected under TUPE if both of the following apply:

• You are legally classed as an employee (this may include workers but not self employed contractors).
• The part of the organisation you work for is in the UK.

Currently TUPE regulations may also protect workers, but as this is still a developing area, you should seek immediate legal advice through Community’s legal team.

The size of the organisation you work for does not matter under TUPE – your rights are still protected. However, it is important to note that if there are ten or fewer employees at the business you work for, and there is no recognised trade union, your employer can inform and consult on the transfer process themselves.

Typically, a TUPE transfer process will involve the following steps:

• Both the old and new employers identify which employees will be affected by the transfer.
• Employees will then be informed of who will be affected by the transfer.
• Trade union or employee representatives will consult employees who are affected by the transfer. If there are fewer than ten employees, this may be done by your old and/or new employer.
• The old employer will provide the new employer with details of the employees who are transferring under TUPE.

Employees who are transferring will transfer to the new employer, alongside their employment contracts and length of service.

After the transfer has successfully finished, your new employer may be able to change terms and conditions in your contract if your contract allows it.

Any changes to terms and conditions any changes because of the TUPE transfer are void even if they are beneficial i.e. if the only or main reason for the changes is the TUPE transfer, any changes will be unlawful.

If the contract of employment allows the employer to make changes to terms and conditions or If the changes are connected (and not the sole or principle reason) to the TUPE transfer, they may be allowed if they are for an Economic, Technical or Organisational (ETO) reason.

TUPE regulations give some indefinite protection to your terms and conditions e.g., if your employer wants to change your contract years after the transfer completed, they will still need a valid reason to change them, unrelated to the transfer. They cannot change the terms and conditions simply to ensure you are on the same terms and conditions as their other employees who did not transfer over with you.

ETO contract changes

Your employer might want to change your employment contract because of an 'economic, technical or organisational' (ETO) reason. For example:

• Economic reason – essential cost-saving requirements.
• Technical reason – implementing new processes or equipment.
• Organisational reason – restructure or redundancies.

This is not something that can be done easily and your employer will need to establish the ETO reason if they wish to rely on this ground.

For this to apply the changes must be applied to the whole workforce and not simply those who have been transferred over as this may then be considered to be ‘Harmonisation’ of terms and conditions which is also unlawful.

Improving terms and conditions in your contract (Harmonisation)

After a TUPE transfer has taken place, it is likely that your terms and conditions will differ to employees who already worked for the new employer. You do not have an automatic right to the same terms and conditions as them.

However If your terms and conditions are re-negotiated by your trade union as a part of a recognition agreement, and the changes take place more than one year after the transfer, the harmonisation of terms and conditions will lawful if they are the same or more favourable then the previous terms.

Your terms and conditions cannot be changes to something that is worse e.g., less annual leave entitlement, unless your employer has a valid ETO reason to do so.

If the reason to change your contract is not related to the transfer

If your new employer is proposing changes to your contract that are unrelated to the transfer e.g., if business needs have changed, TUPE regulations do not prevent your employer from making these changes.

Your new employer must agree any changes and follow the usual process of changing a contract of employment.

Before a transfer happens in any business or organisation, your current employer must inform all employees, recognised trade union(s), and representatives in writing:

• That a transfer is happening when it is expected to happen and why it is happening.
• How the transfer is expected to affect everyone e.g. change in location, working hours, job description, redundancies or change in pay.
• How they expect to conduct the transfer.
• Whether there will be any reorganisation in the business.
• If they expect to use any agency workers during the transfer process, and what work they will undertake.

If you are transferring to a new employer, your current employer must:

• Inform any trade union or employee representatives of any changes the new employer is planning to make.

If you stay employed with your current employer, but other employees are transferring, your current employer must:

• Consult with you, all other employees who are staying, and trade union/employee representatives on how the transfer will change working practice or impact your workload.

During the TUPE process, your employer must consult with any recognised trade union and representatives on anything to do with the transfer that would affect employees e.g., reorganisation. Ideally, they will agree on these changes before they are made.

If there is no trade union representative present in the workplace, your employer may hold an election to nominate an employee representative to represent employees during the consultation process and transfer.

If an organisation has ten or fewer employees, and there is not a recognised trade union present, employers can negotiate directly with employees if they don’t want to nominate an employee representative.

Your employer has no legal obligation to make changes that affected employees, or trade union or employee representatives suggest, but you must be allowed to make these representations and the employer needs to consider them

Before your employer makes their final decision, they need to show that they have:

• Discussed the transfer changes with all affected employees.
• Listened to all affected employees, their suggestions, and show that they have fully considered them.
• Tried to reach an agreement with all affected employees.

If your employer failed to come to an agreement with employees and trade union/employee representatives, they should provide business reasons which explain why any suggestions were rejected.

Although there is no legal obligation to do so, it is good practice for employers to keep all affected employees up to date on any developments with the transfer, even if trade union or employee representatives are present to disseminate information.

It is important to note that employers can be legally penalised for failing to inform employees, any recognised trade union(s), and representatives that a TUPE is taking place. If your employer has failed to inform you, your union or representatives of their intent to undergo TUPE, contact us immediately for support.

During the TUPE process, it is important to know what information your employer must inform and consult you on.

• Inform – when your current employer tells you the facts about the transfer. This information must be provided before the transfer.
• Consult – when your current employer asks for and considers any employee and representative feedback on changes that the transfer will bring before deciding.

There is no fixed period that your employer must adhere to for informing and consulting employees. However, your employer must give any trade union or employee representatives any ad all information long enough that they can discuss it with employees affected by the transfer. This period will depend on:

• How many employees are affected by the transfer.
• The size of the business.
• How complex the changes will be.

It is vital to know that your employer must consult with any recognised trade union, or if there is none, ensure that an appropriate employee representative(s) is nominated to represent the employees affected by the transfer. See ‘How will I be represented?’ below for more information.

As previously mentioned, your employer may consult directly with employees affected by the transfer where there are fewer than ten employees, unless there is a recognised trade union in place.

If you are being made redundant during a TUPE transfer, the normal rules on fairness and unfair dismissal rights apply.

Before a TUPE transfer

Before a transfer takes place, your new employer cannot ask your current employer to make you redundant – this is considered an unfair dismissal.

If twenty or more employees are at risk of redundancy, redundancy consultations can take place before the transfer if both your new and current employers agree. Your new employer cannot make you redundant before the transfer takes place.

After a TUPE transfer

After the transfer has taken place, your new employer can only make redundancies related to the transfer if:

• There is a genuine redundancy situation; and
• A need to amend the workforce for ETO reasons e.g., a reduction in the number of employees needs to be made.

If your new employer’s reason for making redundancies is not related to the transfer, they can make redundancies following normal redundancy procedures and not treat employees who transferred over differently to existing employees at the business.

Click here to find out more about your rights during redundancy.

Redundancy pay

If you are made redundant after a TUPE transfer, your new employer is responsible for any redundancy pay you receive. The pay you receive must be based on your continuous length of service, including the time you worked for your previous employer before the transfer.

Redundancy consultation

If redundancies are planned to take place during the transfer, your current employer must consult all employees and trade union/employee representatives about the redundancies – even to employees who are not at risk.

If your current and new employers agree, they can begin redundancy consultations before the transfer – this must start at least 30 days before any redundancies are made. If fewer than twenty redundancies are being made, there is no fixed period for employers to consult individual employees.

Employees cannot be made redundant until after the transfer has taken place.

During the TUPE process, if the business has more than ten employees, you should be represented during consultations by a trade union representative(s), or if there are no representatives in the workplace – an employee representative.

Trade union and employee representatives can represent employees during the TUPE process by:

• Informing you of the employer’s TUPE transfer proposal.
• Sharing any updates and information about the transfer and discussions.
• Asking for your views.
• Answering any questions you may have.
• Working out a collective employee response.
• Meeting with the employer to discuss employee response.
• Taking part in open discussions with the employer and employees to resolve any issues and reach an agreement.
• Ensuring the employer follows TUPE regulations.

Employee representatives

If there is no recognised trade union, or trade union representative, an employee representative will need to be elected. During this process, as an employee, you have the right to vote for an employee representative or stand for election if the transfer will affect you. Your employer should ensure that:

• All employees who stand for election will be directly affected by the transfer.
• All affected employees are given the right to vote for who they want to be their employee representative(s).
• Affected employees are not stopped from standing for election.
• Votes can be made in private and will be counted accurately.
• A sufficient number of employee representatives will be elected to represent employees affected by the transfer.

Recognised trade union and employee representative rights

During a transfer, any trade union representative, or nominated employee representatives have the right to:

• A reasonable amount of paid time off to represent employees affected by the transfer.
• Talk to employees affected by the transfer.
• Access to workplace facilities to perform their duties at an employee representative.
• Paid time off for TUPE training.
• Not be dismissed or treated unfairly because they’re a trade union, or employee representative.

If you are interested in representing your colleagues with issues at work, including TUPE, click here to find out more about becoming a Rep. Full training and support will be provided by our in-house education team.

You can refuse to transfer employer. However, if you do, your contract will be terminated, and you may have no rights to claim redundancy or unfair dismissal.