“TUPE CAN BE STRAIGHTFORWARD BUT ITS OFTEN COMPLEX AND BUSINESSES AND ORGANISATIONS OFTEN FAIL TO APPRECIATE ITS IMPLICATIONS. ITS CRITICAL TO FACTOR THE APPLICABILITY OR OTHERWISE OF TUPE INTO ANY COMMERCIAL SITUATION WHERE THE TRANSFER OF ALL OR PART OF A BUSINESS OR ECONOMIC ACTIVITY IS PLANNED AND TO TAKE EARLY EXPERT ADVICE”
TUPE Solicitors - Outsourcing & the Transfer of Undertakings Regulations (“TUPE”)
The Transfer of Undertakings (Protection of Employment) Regulations 2006 (commonly known as TUPE) are designed to ensure that whenever a 'relevant transfer' transfer takes place employees are not dismissed and that even though a business or part of a business or an economic activity is transferred from one employer to another. TUPE also protects the transferring employees’ existing terms and conditions of employment.
It's important for employers to appreciate that TUPE applies to all UK based employers regardless of their size. It also applies in both the public and private sectors and whether the relevant business is commercial or non-profit making.
WHEN DOES TUPE APPLY?
We know, as specialist TUPE solicitors that it’s not always easy to recognise a TUPE situation. It’s important however to appreciate that TUPE can apply in the following types of situations:
Where a Business Transfer takes place. This means that one company or organisation transfers all or part of its business to another company or organisation.
Where there is a change in the identity of a contractor or service provider. E.g., where a service is contracted out or where a previously outsourced service is awarded to a new contractor or alternatively brought back in house.
IF TUPE APPLIES, WHAT DOES IT DO?
The key implications of TUPE applying are as follows:
Any affected employees will transfer from the existing employer to the new employer on their existing terms of employment with their continuity of employment being preserved.
New employers can, in certain circumstances, be held liable for pre-transfer related dismissals where the dismissals were for a reason that is connected to the TUPE transfer. Additionally, any TUPE related dismissals might be deemed to be automatically unfair.
In most cases the new employer will inherit the transferring employees on their existing terms and conditions of employment. They’ll also take over all rights, powers, duties, and liabilities in respect of the relevant employees (there are special rules governing pension rights).
Changes to the transferring employees’ terms of employment which are not permitted under the existing contract of employment then these can be void and have no effect where the reason for the proposed change is linked to the TUPE transfer.
Individual employees can object to their own employment transferring.
Both the existing and the new proposed employer will have obligations under TUPE to provide prescribed information to their employees and to each other and also to enter into consultation. Businesses and organisations who flout these obligations run the risk of having to pay significant and costly protective awards and financial compensation.
What we do
We’re specialist TUPE solicitors. We’ve been advising businesses and organisations about TUPE, its application and the steps that need to be taken to ensure compliance and avoid unnecessary delays and complications as well as potentially costly Employment Tribunal claims.
TUPE SOLICITORS & TUPE ADVICE
Some of the key outsourcing and TUPE advice services that we provide include:
Outsourcing advice including reviewing and drafting relevant employee and TUPE related clauses in outsourcing agreements to ensure that your business is adequately protected in contracting out or contracting in scenarios.
Utilising our expertise as TUPE solicitors to analyse existing or proposed transactions in order to ascertain whether TUPE applies.
Advice in relation to an outgoing employer’s obligation to provide new employers with specified Employee Liability Information and also in relation to the obligation under TUPE to inform and consult with employees.
Advice to new and/or incoming employers in relation to the implications of TUPE, their own obligation to provide the outgoing employer with information about any 'measures' that they intend to make together with advice relating to the steps that can be taken to successfully assimilate new employees into their own business or organisation.
Drafting and preparing relevant TUPE related letters and documents.
Advice relating to TUPE related dismissals and bringing or defending TUPE related Employment Tribunal claims.
