If a business you work for has been purchased by a new owner, your employment may be protected under the Transfer of Undertakings (Protection of Employment) regulations, commonly referred to as TUPE.
Depending on the circumstances, this could mean that you have the right for your job to be transferred to the new employer with the same terms and conditions. However, TUPE does not apply to all business sales and even if it does, you could still face redundancy if the new owner needs to make job cuts as part of the takeover.
When does TUPE apply?
The Transfer of Undertakings (Protection of Employment) regulations cover two types of situations when employees may be transferred from one business to another:
- When a business or part of a business is transferred to a new owner e.g. during a takeover or merger.
- Where the provision of a recurring service is transferred to a different employer e.g. an in-house service is contracted out, a contracted service is brought in house or a contract ends and the service is moved to a new contractor.
How does TUPE work?
Before any transfer of ownership takes place, your current employers are required to inform you of the following via your trade union or employee representative:
- That the transfer is happening.
- When the transfer is happening.
- Why the transfer is happening.
- How the transfer will affect you.
- What, if any, reorganisation will be taking place.
- Whether any agency workers will be used and, if so, how many and what work they will be doing.
If you do not have a trade union or an employee representative, one must be elected by the employees if your company has ten or more employees.
The new employer will be required to take over your employment contract, including maintaining your:
- Terms and conditions of employment
- Holiday entitlement
- Period of continuous employment
- Any collective agreements already in place
- Right to make an employment claim for any pre-existing issues
- Pension rights earned up to the time of transfer (although they do not have to continue the same pension scheme offered by your previous employer)
If you decide you do not wish to continue working for the new employer, you are free to end your employment, which will be treated the same as a standard resignation, except without the need to provide notice (unless your notice period would end before the transfer of your employment to your new employer). Your employment will then end at the point of transfer to the new employer, unless otherwise agreed.
When can I be made redundant under TUPE?
You could face redundancy if your new employer has legitimate economic, technical or organisational reasons for doing so e.g. duplication of skills, closing down and underperforming part of the business, transferring jobs to a different location and you are not willing to move to etc.
Your new employer will be required to follow the standard rules around making redundancies, including the need to make sure the basis for redundancies is fair and that proper redundancy payments are made where appropriate.
Can my contract be changed when transferring to a new employer under TUPE?
Your new employer is required to maintain your existing employment terms and conditions. However, they could ask you to agree to different terms if there is a legitimate economic, technical or organisational reason for doing so e.g. because your role will change significantly at the new employer.
You cannot be forced to agree to a change in the terms of your employment and will need to agree to any changes, unless your existing contract allows such changes to be made without your agreement.
Get expert legal advice on employment law
If you are facing redundancy or the potential transfer of your employment to a new employer, it is strongly recommended to get expert legal advice as soon as possible. This can help to protect your employment rights and make sure you get a fair deal, whatever the outcome for your employment.
At Bird & Co, our employment team have years of experience in all areas of employment law and will be able to provide tailored advice to help you through every step of dealing with redundancy, TUPE or any other issues you are facing.
If you have an employment issue you would like to discuss, call us on 01476 404 109 or fill in our simple enquiry form and we will get back to you promptly.