Whether or not TUPE applies to your situation can be complex. It may or may not be in your best interests for TUPE to apply – you may prefer it if there were a redundancy situation at your present employer with entitlement to a redundancy payment.
Sometimes the incoming and outgoing providers of services are in dispute over whether or not TUPE applies and the employees are caught in the middle. In many cases, you will have a remedy but it is not necessarily clear from which employer.
A disputed TUPE situation might lead to Employment Tribunal claims for Unfair Dismissal, for a Redundancy payment from your former employer or for Unlawful Deduction from Wages if there has been an attempt to reduce your hours or pay after a TUPE transfer.
Our extensive experience of TUPE means that our employment lawyers can advise you whether TUPE is likely to apply in your situation and what rights that gives you. If this leads to a dispute with either the incoming or outgoing employer, our TUPE lawyers can help settle that dispute or represent you in an Employment Tribunal claim.
We know that money will be tight if you have lost your job as a result of a TUPE situation. We assess whether we might be able to offer a Damages Based Agreement (where you pay us a percentage of the compensation you receive) to bring an Employment Tribunal claim or identify whether you can use existing legal expenses insurance to pay your legal fees. In other cases, we will fix fees where possible so that you can be certain how much you will spend.
Our employment lawyers are based in our London office but can also see you at our Watford Office.
There is no prescribed amount of notice to give before a TUPE transfer but the employer must inform the appropriate employee representatives long enough before the relevant transfer to enable them to consult about any proposed measures. The amount of notice will depend on the particular circumstances and extent of consultation required.
Employees that are assigned to the relevant undertaking will transfer. Employee is defined widely and can include casual workers. TUPE only applies to service provision changes where work is organised in such a way that a group of employees principally work on that contract.
You can object to a TUPE transfer, in which case your employment will terminate. You would not be entitled to notice or a redundancy payment.
Changes to contractual terms because of a TUPE transfer are void unless there is an economic, technical or organisational (ETO) reason for the change entailing changes in the workforce, the contract itself allows for that particular variation, certain changes made because of collective agreements and in insolvency situations. Simply harmonising terms with existing employees after a TUPE transfer is generally considered void.
A change in hours would be a change to a contractual term. If the reason for the change in hours was the TUPE transfer, this change would be void unless it fell within one of the exceptions detailed above.
A reduction in salary would be a change to a contractual term. If the reason for the change in hours was the TUPE transfer, this change would be void unless it fell within one of the exceptions detailed above.
There is no time limit to the bar on changing contractual terms because of a TUPE transfer, though in reality, the longer the period of time since the transfer, the less likely it is that the reason for the change is the transfer itself.
Staff transferred by TUPE can be made redundant but only if there is an economic, technical or organisational change entailing changes in the workforce, or if the redundancy is not related to the TUPE transfer. Staff from both businesses may need to be included in the pool for selection.
TUPE does not apply to all business transfers and service provision changes. A key exemption is transfers that take place by way of share sale. TUPE only applies to a service provision change where the service to be provided by the new contractor is to be fundamentally the same. Only those employees who form an “organised grouping” whose principal purpose is to work on the “activities” moving to the new contractor will transfer.