What is TUPE?
TUPE – "Transfer of Undertakings (Protection of Employment) Regulations 2006" allows employers to transfer staff from one employer to the next without breaking the terms and conditions of employment. TUPE also applies to service provision when a contractor takes over the activities from another i.e. catering, cleaning.
TUPE Process
In an ideal world, employers undergoing a TUPE process must follow a set procedure. There must be discussions and agreements with the outgoing and incoming employer. There must be consultation with staff and employee personnel data should be exchanged within a 28 day period before the transfer. Failure to do so can lead to tribunal penalties.
As TUPE staff terms and conditions are protected, it can be difficult for new employers to not harmonise with their own rules. As a rule of thumb it is advised not to make any contractual changes which could give rise to employees making tribunal claims. TUPE does allow the new employer to make economic, technical and organisational changes provided that the company can demonstrate a strong business case.
TUPE Law
In the case of Tabberer and Ors v Mears Ltd (2018), reflects what went right for the new employer. Ex-Birmingham City Council electricians received Electrician Travel Time Allowance. This historic allowance was withdrawn by the new employer once they tupe’ed over. The new employer demonstrated a very strong business case to justify this allowance removal. The employees believed that it contravened against TUPE rules and made a claim to tribunal. The EAT agreed with the new employer stating that the allowance scheme was outdated and unjustified.
Another interesting case where it went wrong for the employer was Hare Wines v Kaur (2019). Kaur was dismissed two days before a TUPE transfer took place. The outgoing employer was aware that Kaur had a difficult relationship with another employee and tensions would continue once the transfer had taken place. It was explained to Kaur that the reason for termination was that the business was to cease trading. However other staff transferred over. The court of appeal concluded that the dismissal was linked to the transfer and therefore the dismissal was automatically unfair.
It is important to gain employment advise before making any rash decision as the outcome of a TUPE transfer could result in a hefty fine.
If this article raises any issues for you or your organisation, please speak to our Quest HR Advisors or contact us here.
