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Does TUPE apply?

The Transfer of Undertakings (Protection of Employment) Regulations 2006 is TUPE. The underlying purpose of TUPE is to protect employees if the business they work for changes hands is very straightforward.

TUPE applies to employees of UK businesses and the size of the business doesn’t matter. When TUPE applies the employees’ jobs usually transfer over to the new company - exceptions could be if they’re made redundant or, in some cases, where the business is insolvent, or if they are not employees.

Their employment terms and conditions transfer and continuity of employment is maintained. There are 2 types of transfer protected under TUPE regulations:

  1. business transfers, and;

  2. service provision changes

Business transfers This is where a business or part of a business moves from one employer to another. This can include mergers where 2 companies close and combine to form a new one. The identity of the employer must change, to be protected under TUPE during a business transfer.

Service provision changes This is when a service provided in-house (for example cleaning, workplace catering etc) is awarded to a contractor, a contract ends and is given to a new contractor or a contract ends and the work is transferred in-house by the former customer.

Employees aren’t protected under TUPE if the contract is for a single event or short-term task, for example a catering company being used for a large corporate event Whilst experienced HR professionals handle aspects of TUPE themselves, the area is constantly evolving; something employers should be mindful about.

Consideration should be given to taking trusted legal advice when conducting TUPE.

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