TUPE Advice For Employees
TUPE regulations apply to organisations of all sizes and are designed to protect employees’ rights when the organisation or service they work for transfers to a new employer.
It means that employees’ terms and conditions are preserved during and after the transfer or merger, and once the identity of the employer changes.
When does TUPE apply?
There are two situations where TUPE regulations may apply; business transfers and service provision transfers.
This is where a business, or part of it, transfers to a new owner or merges with another business to make a brand new employer.
Service provision transfers
TUPE regulations apply in the following situations:
- a contractor takes over activities from a client (outsourcing)
- a new contractor takes over activities from another contractor (re-tendering)
- a client takes over activities from a contractor (in-sourcing).
Where an activity is no longer carried out by one person or organisation, and is transferred to another, TUPE protects the employees’ employment rights.
Who is protected by TUPE?
As an employee, you must normally show that you are part of “an identifiable economic entity” which retains its identity after the transfer.
You must also work within the entity transferred. This might involve consideration of your employment contract, terms and conditions, how long you’ve worked in that role, the value your employer contributes to that area, and how your role is funded.
What happens when TUPE comes into action?
Usually, your job transfers over to the new company, however, there may be exceptions in cases of redundancy or insolvency. Your existing contractual terms and conditions transfer over and you keep your same rights to bring a claim against your employer for discrimination, as well as redundancy and unfair dismissal etc. if you have the required service requirement (normally two years).
If you do not want to transfer to the new employer, you can object by proposing your resignation to your existing (outgoing) employer.
Your resignation should be tendered before the transfer takes effect and following the resignation, your employment will either be terminated or the outgoing employer may offer you a different job.
If you do object to the move, you have no rights to claim unfair dismissal or a redundancy payment, unless you object for particular reasons.
If you transferred under TUPE, you are protected from any change to your employment contract which occurs because of the transfer.
If your new employer breaches this, those contract changes will be void. Changes to your contract will only be valid if they’re required for the running of the business.
You have the right to only be subject to redundancy in a genuine redundancy situation, i.e. the business is closing or there is no longer a real need for you to do that particular kind of work for your employer.
After your employer has identified those who might be made redundant, your employer should meet with you to explain why, how redundancies may be avoided and offer the chance to accept voluntary redundancy.
If your employer is proposing 20 or more redundancies within a 90-day period, they will need to consult with your union or elected employee representatives. If fewer than 20 redundancies, you have the right to be consulted individually about how your employer has made that call and to discuss alternatives to your redundancy.
If you have been made redundant, you have the right to appeal against that decision. You will have the opportunity to discuss the decision during a meeting, and explain why you disagree.
Your employer may offer an alternative role instead of you losing your job.
Whether you accept this or not depends on the role offered and whether your rejection is reasonable. For example, doesthe alternative role match your skillset? Is it relative to your existing role? An offer with a significant drop in salary would likely be reasonable for you to refuse.
If you’re unsure as to whether an alternative job offer is reasonable, it’s important to seek legal advice straight away, as if you refuse a reasonable offer, you lose the right to statutory redundancy pay.
Contact our TUPE solicitors in Bristol
As an employee, the thought of what seems like such a big change at your workplace might seem overwhelming and worrying. Our employment solicitors can help you to understand the process, your TUPE rights, and the obligations your existing and new employer has.
We work with employees all over the UK from our offices in Bedminster, Bishopston, Kingswood, Queen Square and Thornbury. For clear, practical advice, call 0117 325 2929 or complete our online enquiry form.