TUPE

How this guidance note can help

This guidance has been developed by CollaborationNI to help voluntary, community and social economy (VCSE) organisations understand the employment issues in the two pieces of employment legislation collectively referred to as TUPE. It has been devised to assist organisations to assess how the legislation may apply to collaborating or merging organisations and their employees.  It provides information on:

• what TUPE is and the legislation involved
• what the ‘automatic transfer principle’ is
• when TUPE is likely to apply and when it isn’t
• the responsibilities of employers when TUPE does apply
• the impact of TUPE on dismissals

What is TUPE?

Any organisation that has employees must comply with employment legislation.  Contracts of employment should be set out for all employees outlining the conditions that the organisation offers such as hours of work, rate of pay, notice periods, etc.

When collaborating or merging the two pieces of employment legislation to be considered are the:

• Transfer of Undertakings (Protection of Employment) Regulations 2006
• Service Provision Change (Protection of Employment) Regulations (NI) 2006

The automatic transfer principle

Under TUPE staff members employed by the ‘transferor’ organisation, just before the transfer, will automatically become employees of the new ‘transferee’ organisation, just as if their contracts had originally been made with the new employer.  Their continuity of employment remains intact and the rights and liabilities of those employees are also transferred.

When TUPE applies

TUPE applies when there is a ‘relevant transfer’ of an economic entity which retains its identity (a business transfer) or there is a service provision change.   

A service provision change can occur when an employer:

• contracts out services
•  engages a different contractor
• brings activities previously carried out by a contractor in-house

Some transfers can be both a business transfer and a service provision transfer.

Some examples of when TUPE is likely to apply are:

• when a business is bought or sold
• when granting or transferring a lease or licence of premises and continuing to operate the same business from those premises
• when two (or more) businesses merge
• when two companies cease to exist and combine to form a third

There is a service provision change when:

• a service undertaken by an employer is contracted out to a contractor (contracting out)
• a contract is assigned to a new contractor after a process of retendering
• a contract ends with the service becoming an in-house service (contracting in)

When TUPE does not apply (an indicative list)

Some transfers are not classed as a ‘relevant transfer under the Regulations’, but if you are uncertain, always seek advice.

Some examples of when TUPE regulations are not likely to apply are:

• in share take-overs, as it is the same company that continues to be the employer
• in transfer of assets only, eg if only equipment or furniture is sold
• in transfer of contracts to provide goods or services where it does not involve the transfer, or part transfer, of a business
• a transfer of undertakings outside the UK
• a one-off purchase of services of short duration

The effect TUPE has on employers

References to Regulations in this section refer to the Transfer of Undertakings (Protection of Employment) Regulations 2006.

The Obligation to Inform and Consult

Both the transferor and the transferee are obliged to inform and consult with recognised Trade Unions or elected representatives in relation to any of the employees who may be affected by the transfer.

A failure to comply with these obligations can give rise to the parties becoming liable to pay compensation equivalent to up to 13 weeks’ pay.

Transfer of Employee Liability Information

When employees are transferring out of the organisation the ‘transferor’ needs to inform the receiving organisation, ‘the transferee’, either in writing or in a readily accessible form, of any employee liability information as set out under Regulation 11.

The employee liability information includes the following:

• name and age of the transferring employee
• statements of employer particulars required to be sent under section 1 of the Employment Rights Act 1996
• details of any disciplinary or grievance procedure taken by or against any employee within the previous two years to which the statutory dismissal and disciplinary procedures apply
• any legal actions brought by the employee against the employer within the previous two years or any legal actions contemplated
• information relating to any collective agreements that are applicable

Terms and Conditions

Any employees who have transferred should not be disadvantaged by a new contract and all terms and conditions should be transferred across, and their continuity of employment preserved.  An employee’s contract should not be varied and any variation will be void under Regulation 4 (4) of the legislation if varied for a reason which is connected with the transfer and which is not for an economic, technical or organisational reason.

Care should be taken as to when you consider it safe to vary a transferred contract.  There is no set period of time specified in the Regulations nor have the Courts any rule which defines the period  after which the transfer will or will not impact on the employer.  However, if the transfer is occurring as a result of an insolvent business then it may be easier to make changes to the terms and conditions under Regulation 9 of the legislation.

Dismissals

If any employee of a transfer is dismissed as a result of the transfer or a ‘reason connected with the transfer’ then the dismissal is automatically unfair.  If however the dismissal is as a result of economic, technical or an organisational reason, then the related dismissal may be fair. Fair dismissal procedure must always be followed.

An employee who objects to the transfer does not become an employee of the transferee.  Instead their contract of employment terminates by operation of law on the transfer date and there is no dismissal.

An employee who feels that they have been unfairly dismissed in relation to a transfer or merger must seek independent legal advice as soon as possible in order to stay within the timeframes of making applications (usually within three months) to an Industrial Tribunal.

Useful links

More general information on employment legislation can be found at:

Labour Relations Agency

Equality Commission

Department for Employment and Learning