If an employee in a TUPE situation refuses to transfer, to which employer should they submit their resignation?
An employee in a TUPE situation who refuses to transfer will not become an employee of the new employer. Logically, it follows that any resignation before or at the time of the transfer is best submitted to the original employer. However, reg.4(7) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) states that, where an employee informs either the original employer or the new employer that they object to becoming employed by the new employer, this will have the effect of preventing the employee's employment from transferring. This would appear to indicate that the resignation could be submitted to either the original employer or the new employer. This will be the case provided that the resignation is submitted before or at the time of the transfer.
If, on the other hand, the transfer has already taken place when the employee resigns, the resignation will have to be notified to the new employer, as the individual's employment will in fact have transferred before the resignation is submitted.