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The effect of the TUPE regulations mean that employees’ terms and conditions are preserved when a business or undertaking or part of one is transferred to a new employer. Similarly where activity is ceased to be carried out by one person or organisation and undertaken by another (known as a Service Provision Change), TUPE is likely to take effect protecting the employment rights of the employees affected by the transfer.
TUPE is a complex piece of legislation and often an area which employers neglect. 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, once we receive your contact details a member of the team will contact you further to discuss.
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.
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.
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%.
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.
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