💼 Transfer of Undertakings (Protection of Employment) Regulations (TUPE)

The TUPE regulations were introduced to protect your rights when you are forced into a situation where you must change employer.

💸 There are two main types of TUPE transfers:

1. Business transfers
2. Service provision changes

Business transfers are where your employer is moved from one to another indefinitely (the more technical wording is "as a going concern"), i.e. not temporarily. For example, if two companies merge.

Service provision changes cover changes to do with both outsourcing and insourcing:

• Where your role is contracted out to another employer e.g. all internal IT services are moved to an outsourced contractor.

• When your role is moved to another service provider e.g. the choice of outsourced contractor is changed.

• When your role is moved back in-house e.g. the internal IT services roles outsourced to your employer are brought back in-house).

🤔 There are several caveats on who and when the TUPE regulations apply

Only applies to employees, not other types of workers,

Only triggers when your employer's legal identity changes,

Applies across the public, private, and voluntary sector (intra-governmental transfers are covered by something separate, however, called COSOP, which we won't be covering here),

Applies no matter the number affected - even a single employee can be considered protected under this regulation,

Can apply when the job is transferred outside of the UK and Europe/the EU,

Applies to internal reorganisations, e.g. employees moving from one subsidiary to another under a group,

The two-year service requirement is still required for unfair dismissal under TUPE.

✊ When you transfer under TUPE, you retain your rights!

All of your individual terms and conditions must remain the same. There are only 3 reasons that these can be changed during (and after) a TUPE transfer:

• You have agreed to the change

• The change is unrelated to the transfer

• There is a valid economic, technical, or organisational reason.

There are also specific things that an employer cannot do to avoid giving you these rights:

• Cannot enter contractual terms to opt out of TUPE regulations,

• Any contractual terms that breach TUPE are considered void,

• They cannot pick or choose who moves over - if it's your role that's moving, you are moving (if you don't object, of course).

And for the few of us (for now!) that have collective agreements:

• Collective agreement rights are retained for 1 year after the transfer date. After which, these can be changed as long as the new terms are no less favourable when considered together.

• National/Sector collective agreement rights, such as negotiated pay rises, are not retained unless the new employer agrees to be bound by the agreement.

The only exception is that if you had an occupational pension, this specifically does not transfer.

✊ Trade union recognition

Recognition agreements transfer automatically as long as the unit test that was originally satisfied during recognition is still met. The wording is specifically that the transferring group "maintains an identity distinct from the remainder of the transferee's undertaking". You can understand this simply as if the original unit test were being applied again, would it still stand up?

For example, if you transfer and join a team of others or are doing the same role in a different context, then it would not stand. If it were the same grouping as previously, then it would.

If the recognition wouldn't transfer because of the above, you are back at step 1 of organising a union at work (but with way more experience than others, and way more likely to succeed!)

✋ Objecting to a transfer

When you object to a transfer, your employment contract automatically ends, but you are not treated as being dismissed. You also lose the right to claim redundancy or unfair dismissal (as it was a voluntary action). The original employer can take you back on when you object, but this is considered entering a completely new contract, and you lose the rights to retain your previous terms and conditions of employment.

There is an exception in place where the transfer would cause substantial detriment, but this objection must be made before the transfer, as it is not possible to transfer under protest. In the case where this is true, you can consider yourself dismissed, and you can follow an unfair dismissal claim.

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You should take your time and get as much advice as possible before objecting to a transfer. This type of claim is incredibly difficult and high-risk, and it's likely that it will take a long time to get through the tribunal system in the meantime.

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🛠️ The definition of "employees" is different under TUPE

Usually, the definition of employees is pulled from the Employment Rights Act. In this case, TUPE expands this. The wording is quite technical:

“any individual who works for another person, whether under a contract of service or apprenticeship or otherwise, but excluding anyone who provides services under a contract for services.”

What you can take away from that is that agency workers, genuine freelancers, and genuinely self-employed are all excluded from TUPE. However, the wording of "or otherwise" allows us some wiggle room. If you think that wiggle room might apply or can help others get their rights guaranteed, make sure you bring this up when you're working with organisers and reps supporting you!

📊 Economic, Technical, or Organisational (ETO) reasons

The three types of reasons your new employer can have to vary your terms and conditions are:

Economic

This is to do with the financial state of the business, for example, if the business cannot keep operating due to the costs of maintaining your role, then they are able to vary your terms and conditions and include dismissal/redundancy, within your normal employment rights.

Technical

This is the nature of the work that the business does. For example, if a manual labour role was computerised/mechanised, then TUPE would not protect you from required terms and conditions changes or redundancies due to this.

Organisational

This is the structure of the business - for example, where the new location of work is broadly inaccessible to you/other TUPE'd employees, then dismissal or redundancies can occur outside of TUPE.

However, these definitions aren't set in stone as they aren't defined within the regulations. This means that they can, and will, change as case law develops!

🤷 So, you’ve been or are being TUPE’d, now what?

We have lots of members who have been through TUPE’s before, and have reps with experience in dealing with TUPE.

Here is some anecdotal advice from them:

“In my experience of being TUPE’d and now having spoken to quite a few other people that have been TUPE’d.. It seems like a lot of TUPE’s are followed by redundancies further down the line. This could purely be coincidental, but it’s a pattern I’ve noticed since working with people going through TUPE”.

“TUPE’s can be quite awkward and unsettling. When my company got TUPE’d, there was definitely some awkwardness between us and the new staff. No one knew anyone else, it was a total surprise/no one knew the TUPE was happening.. So there was a bit of wariness between old and new staff.

I really recommend trying to build some trust and solidarity with the other staff as soon as possible.

When we joined the other company, it turned out the employees there were unionising. Us being TUPE’d into the company ended up massively helping their campaign, because everyone could see the writing on the wall that things in the business were changing. We all joined their union en masse and through doing that became very pally with the original staff there.

I’m glad we did that, because later down the line the company tried to force us all into the office - and because we were getting unionised we were able to push back collectively and it worked. I think if we’d not gotten friendly with the staff as soon as we did, we would have been forced back to the office successfully.

The other reason I’m glad we did this is because there was definitely some resentment amongst the old staff about us joining. They hadn’t got pay rises in ages etc etc and suddenly the company was bringing us all in. The staff there understood that it wasn't our fault.. But I think a divide could have happened if we hadn’t become friends with the staff there.”

“UTAW put on training for my company when we were going through TUPE which was helpful”

“Get organised - TUPEs are often a precursor to further changes, but even when they’re not, they often end up bringing people together by accident. It is a golden opportunity to educate people, bring them into the union, and prepare for whatever comes next.”

🤷 As always…

The only power we have as workers is in standing together. If you’re going through a TUPE, become a UTAW member and learn how to organise. We do free training on this. Organising your colleagues will prepare you for potential battles ahead, including retaining your TUPE rights long into the future.