Transfer of Employment? Worried about TUPE?
At Lincs Law we regularly have clients call us worried about their employment being transferred under TUPE. Frequently, this term is used by employers without any real explanation as to what is going on.
What is TUPE?
TUPE, or to give it its full name, the Transfer of Undertakings (Protection of Employment) Regulations 2006, is a piece of legislation which protects employee’s employment rights when a business or service transfers from one provider to another. For example, if one company had a contract to clean a school and they lost that contract to another provider, when the new provider took over, that would be a transfer of the business and TUPE would apply.
In these days of organisations tendering, reconstructing, outsourcing etc TUPE can become a fact of life in some industries. The way it works is that any employees who have been working in the transferring business will have their employment protected when the new provider takes over. The idea being that their employment will transfer from the old provider to the new and their continuous service and terms and conditions etc will be protected (bar a few exceptions). To all intents and purposes, it would be as if they had always been employed by their new employer.
What does my employer have to do?
The regulations place duties on both the outgoing and incoming employers to inform and consult with employees affected by the transfer. Where it is a large-scale transfer, often that is done with employee representatives. For transfers on a smaller scale, consultation will usually take place with all of the employees involved. There are no specific dates when consultations should begin. However, it should be started in good time before the transfer takes place so that consultation is ‘meaningful’. In consultations with staff, they should provide them with information about: –
- That the transfer is going to take place,
- When they expect the transfer to happen,
- Why the transfer is taking place,
- Implications on the affected employees, and
- Any actions the new employer might be making in terms of restructuring staff.
Although TUPE will protect terms and conditions on employment, an employer can make some changes if those changes are for economic, technical or organisational reasons. Usual examples are, if following the transfer, the employees will be required to work to new premises, that there are new working practices in respect of I.T or, in some circumstances, if there is to be a restructure for greater efficiency.
If changes are going to be made, employees should be consulted about those changes and given the opportunity to make representations.
Could I lose my job?
We are often asked if transferring employees could lose their jobs during a TUPE process. Unfortunately, the short answer is yes that is a possibility. However, if the main reason for the employee being dismissed is as a consequence of the transfer, the Employment Tribunal will consider that dismissal to be unfair. Equally, the normal rules about unfair dismissal and redundancy must be complied with in any dismissal. That will include consultation, consideration of alternative employment, consideration of volunteers, consideration of alternatives etc.
I always tell clients who believe that they are subject to a TUPE transfer to get as much information as possible as early as possible. The incoming and outgoing employers are required to consult about any changes to employment and it is important that as a transferring employee, you make proper use of those consultations and put any concerns you have forward.
Let us help
If you are currently subject to a TUPE process and would like some advice about your situation, please call for a free no obligation telephone consultation on 01522 539501. Alternatively, for more about Lincs Law Solicitors including what we do and how we do it please visit our website at www.Lincslaw.co.uk
Sally Hubbard, Specialist Employment Law Solicitor
Lincs Law, Lincoln.