What Rights Do the TUPE Regulations Protect?

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 out by another, you’re afforded a reasonable amount of protection as an employee. The new owners can’t just waltz in and sack everyone.  
 

What rights do the TUPE Regulations protect?

For employees, the government's TUPE regulations offer a range of protections that should – in theory – ensure continuity. Your working conditions shouldn’t 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 can’t suddenly change your job title, cut your pay or holiday allowance, or increase your hours. TUPE also protects continuity of service, so any related benefits, like holiday days and bonuses, aren’t 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 which is buying the business.
 

• Employer obligations

Under TUPE, if your old employer has guaranteed certain provisions, such as letting you work from home, then these are transferred to the new employer. It’s about making the process as seamless and fair as possible for all employees.

This also extends to pay dates – they can be brought forward (so that you are paid earlier), but usually can’t be moved forward, since this would negatively affect workers. It is, however, occasionally possible for employers to change your pay date if there is an economic, technical or organisational (ETO) reason for doing so.

Location can prove an issue too. If the new employer asks you to commute to a different location, and you find it’s too far away, the company must explore and consult on alternative arrangements or possible solutions. If they fire you, a tribunal may decide this constitutes unfair dismissal.

However, you should bear in mind that not all changes of work location will be considered unreasonable, and you may have to be flexible to some extent. As always, you should talk to a solicitor to find out if you have a case.
 

• Redundancy and resignations

Your new employer isn’t allowed to dismiss you if it’s related to the transfer. There is an exception to this, though: if there’s a solid economic, technical, or organisational reason, you can be made redundant – but the new employer cannot simply use this to fire their new staff, and will have to work very hard to prove this.

To be a valid reason, it must relate to the company’s performance, processes and equipment, or structure.
If you believe you’ve been made redundant and the main or only reason is because of the transfer, it’s time to seek legal advice.

You’re also under no obligation to transfer to the new company – if you choose not to, this will be treated as a resignation.
 

• Consultation

Your old employer should consult you about the transfer and how it will impact on your work. Good communication from the upper levels of the company, though not a legal requirement, helps make the transfer process easier (unfortunately, this doesn’t always happen).

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

• Employment claims

If you’ve made a claim against your old employer – for instance, for discrimination – then, after the transfer, you’ll be able to bring this claim against the new company, even though it happened before the transfer.
 

• Pensions

TUPE protects your existing pension: after transferring, you can continue paying in as you always have. But the new business is under no obligation to continue offering the same pension. 
 

How long does TUPE protection last after a transfer?

Technically, you’re protected for as long as you remain with the business. Your new employers aren’t allowed to make changes to your current employment terms and conditions in relation to the transfer.

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

If your employment terms come from a collective agreement (such as an agreement made by your union) then the new employer also has a right to renegotiate these after a year, provided that they are not less favourable overall.

A change can be made within one year if it benefits you, such as a promotion. After accepting a promotion, you’ll be on a contract controlled by your new employer, and TUPE will no longer apply.
 

When does TUPE apply and not apply?

It doesn’t 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 out-sourced 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 don’t apply when:

• The identity of your employer doesn’t change, despite the 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’s no organised group of employees working in the UK
• Activities or services are significantly broken up and reallocated, severely altering the nature of your work

 

What if TUPE regulations have been breached?

Most TUPE transfers are seamless. Most employees shouldn’t notice any changes to their day-to-day tasks. The business culture may change, but your work (and your pay) shouldn’t.

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

Use our quick quote form to find an employment solicitor near you.