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Is your employer transferring to a new employer? If so, don’t worry about changes to your employment contract. The TUPE regulations protect you. But what is TUPE and are there circumstances where you’re not protected? In this article, our solicitors explain all.
If you’re an employee who wants to discuss their legal rights, or you’re an employer who wants to avoid any employment tribunal claims, our solicitors can help. For more information, please visit our employment law page or contact our solicitors directly on 020 3007 5500.
What is TUPE?
TUPE stands for Transfer of Undertakings (Protection of Employment). TUPE regulations protect a company employees’ rights in a circumstance where part or all of a business changes from one employer to another. Therefore, under TUPE, the new employer will take over any existing employment contract, which includes:
- All previous terms and conditions of employment, such as the job description, working hours, pay (including when and how often), among others.
- Failures of the previous employer in observing an employee’s rights. Therefore, an employee could claim discrimination against the new employer, even if the discrimination took place with the old employer.
- Continuous employment. The employee’s start date remains the same as before the transfer, so employment remains continuous.
- Any collective agreements between an employee and previous employer. For example, if an employee agreed with the last employer over a subsidised gym membership.
TUPE regulations cover some transfers in the public sector and all transfers in the private sector. Furthermore, TUPE covers company mergers where two companies close and combine to form one new company.
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When does TUPE apply?
TUPE regulations apply in the following circumstances for business transfers:
- An employee’s job transfer over to a new company
- Employment terms and conditions transfer to a new company
- Continuity of employment is maintained
Furthermore, TUPE regulations can also apply for service provision changes. Examples of service provision changes include:
- A service provided in-house (e.g. cleaning, workplace catering) is awarded to a contractor after the transfer. For example, if a company employs a cleaner and then after the transfer, the new employer decides to use an external cleaning company instead.
- A contract ends, and the work is transferred in-house by the former client. For example, if a company is using a digital marketing agency, and then after the transfer decides to bring all the digital marketing work in-house.
- A contract ends and is given to a new contractor after the employer transfer.
On the flip side, an employee isn’t protected under TUPE if:
- They have been made redundant.
- The business has gone or is going bankrupt.
- They work for a goods supplier for a company’s use. For example, a restaurant decides to change food suppliers after the transfer.
- They’re involved in single events or short-term work. For example, a single corporate event using a catering company.
How long does TUPE last after transfer?
The protection period by TUPE is indefinite. If the new employer attempts to change the terms and conditions of a contract because of the transfer, it’s illegal. TUPE can still protect an employee even years after the transfer.
The difficulty comes with proving that any changes result from the transfer, which can become harder over time.
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Can my new employer change my terms and conditions after a TUPE transfer legally?
In short, yes. An employer can legally make changes to an employment contract as long as there are economic, technical or organisational (ETO) reasons for doing so. For example, the new employer can legally change an employment contract if they have economic problems relating to its profitability.
What are my employer’s responsibilities?
Employers involved in a business transfer must do the following:
- Inform representatives of employees who are to be affected by the transfer of any proposed measures.
- Consult with the representatives on any proposed measures. The current employer has no set time to conduct these consultations, but they must occur in ‘good time’ before the transfer.
- Inform the representatives of any changes or proposed changes following the transfer.
- The new employer must inform the current employer of any proposed measures to comply with their duty to inform and consult.
What if my employer doesn’t comply with TUPE?
Suppose the employer fails to consult their employees before a transfer. In that case, the employees can make a complaint to the employment tribunal.
If successful, the employment tribunal can award each affected employee with up to 13 weeks wages.
How can Britton and Time Solicitors help?
If you’re an employee who wants to claim the employment tribunal, or you’re an employer who wants to make sure they avoid any claims made to the employment tribunal, our solicitors can help. In any employment law case, our solicitors will always first require an initial consultation. This consultation will guarantee you the following:
- Unlimited time to discuss your employment matter and ask our solicitor any questions you may have.
- An overview of your legal standpoint and available options.
- An upfront time and fee estimate for your employment case.
For more information, please visit our employment law page. Furthermore, if you would like to arrange your initial consultation, please call our solicitors directly on 020 3007 5500.
Hi there
I am employed by North Northants Council and i am on TUPE for my contract from a sovereign council. We were told that we would be all transferring to a new contract with is more favourable, we are now being told that this will not happen due to us being on TUPE and this is not legal.
Is this true?.