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TUPE Regulations

If your company has been acquired by another, the Transfer of Undertakings (Protection of Employment) Regulations 2006 could be extremely important in maintaining the conditions and continuation of your employment.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) is the primary piece of legislation governing the transfer of an undertaking, or part of one, to another. The regulations were designed to protect employee rights in a business transfer situation, guaranteeing them the same terms and conditions, with continuity of employment, as under the previous ownership.

TUPE 2006 legislation replaces the outdated Transfer of Undertakings (Protection of Employment) Regulations of 1981 (SI 1981/1794). TUPE 2006 legislation applies to all relevant transfers including service provision changes where services are outsourced, ‘in-sourced’ or assigned to a new contractor, such as in labour-intensive services like office cleaning, catering, security, and waste collection.

When might TUPE 2006 affect you?

TUPE comes into play when there is a "transfer of an economic entity which retains its identity", and that economic entity happens to be the undertaking in which you work.

It may not always be completely clear what qualifies as such a transfer by these specifications, as all situations as are different. However, there are some occurrences that are common in many TUPE-related transfers.

For instance, if your company transfers a section of its business to another company, and at the same time the other company also takes over their staff and customers and does the same work that the previous company did, it is highly likely that this is a business transfer in which TUPE would apply.

If this happens, and your employment is transferred to this new company, then under TUPE regulations, your new employer is required to keep you on under the terms of your existing employment contract - this means that they cannot offer you a lower wage, or take away any other privileges that may be enshrined in the terms of your contract.

What if I don't want to transfer?

If your employment contract is being replaced by an equal one but you do not wish to stay in the job, you are free to reject the transfer and your employment will be terminated, though not by way of dismissal. If you reject a transfer you are not entitled to numerous important employment rights, and it will not entitle you to a redundancy payment or unfair dismissal unless you have resigned in response to a repudiatory breach or a substantial detrimental change to your working conditions.

Another exception to this could be if the job in your new circumstances would change your role dramatically, in a manner that you are not willing to accept - it is possible that this could be treated as constructive dismissal.

Similarly, your employer cannot dismiss you if the dismissal is in any way a result of the transfer - this would amount to unfair dismissal.

What other things must my employer do to comply with TUPE?

The outgoing employer (your employer before the transfer) take steps to alert you and other employees of the upcoming transfer by way of communicating with representatives of those employees.

As well as alerting employees to the impending transfer, the employer must also inform and where necessary consult with employee representatives regarding measures that could come into play as a result of the transfer. The employer must also give the employees plenty of notice regarding these changes.

The transferee also has an a obligation to inform and consult with any of their employees who may be affected by the transfer.

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