TUPE - advice & guidance

Am I protected when TUPE applies?

An employee with a minimum of 2 years’ service is protected from dismissal.  Any dismissal, whether before or after the transfer of a business or service provision change, is automatically unfair if the sole or principal reason is the transfer itself.  The only exception is where an employer can demonstrate that dismissal is for an economic technical or organisational reason (known as an ETO reason) which involve changes to the workforce. To rely on this ETO defence, the employer must establish, for instance, that it is for a reason which relate to the profitability of the business or the management or organisational structure of the business.  If a dismissal is for an ETO reason it may still be potentially unfair dependent on the circumstances in which the dismissal took place. 

If I am transferred can my employer make changes to my contract?

The service provider or purchaser of a new business will in effect step into the shoes of the old employer and as such all liabilities in respect of the transferring employees will transfer to the purchaser.

Therefore should the purchaser try to change your contract this will be void if the sole or principal reason for the change is the transfer itself.  Variations can be made if the sole or principal reason for the change is for an ETO reason but this is usually the exception rather than the rule. 

Will my pension protected under TUPE?

The provisions of any occupational pension scheme will not necessarily transfer to the purchaser or the new business owner.  However there are separate duties imposed under TUPE which require the purchaser to give an employee access to a pension scheme.  For instance if the employee is to make contributions to that scheme from his or her salary, an employer must match those contributions up to a maximum of 6%. 

I have been informed that my employer is selling its business to a new owner.  What right do I have to be consulted about this?

Your employer is under a strict obligation under TUPE legislation to consult with you about any sale.  Dependent on the size of the company this will either be through elected representatives who will liaise with you and the company or directly by the company.  At all times it must keep you informed about the sale and any measures that are anticipated to be taken (if any) as a result of the sale.  

If you have any questions or concerns about any measures that are being taken by your employer which you believe involve TUPE, please contact us on 01616 966 229 or complete the online enquiry form.