Editor's message: TUPE protects employees when the organisation where they are employed changes hands - and is a notoriously complex area of employment law.
At the heart of the legislation is the concept that the entire employment contract, and the rights and obligations under it, transfer from the old employer (the transferor) to the new employer (the transferee). This applies both when all or part of a business or undertaking is transferred as a going concern to another employer, and where a service such as IT support, cleaning or catering is outsourced, brought back in-house or transferred to a new contractor. In effect, it means that the employee's contract of employment is treated as if it was always made with the new employer.
Under the TUPE legislation, both the transferor and the transferee are required to follow defined procedures during the transfer, including informing and, where appropriate, consulting with affected employees about the transfer. The legislation also provides protection from dismissal, as well as making purported contract variations void (unless specific conditions are met) - which impacts on transferees' ability to harmonise the terms and conditions of incoming staff in line with those of existing employees.
Katie Barnes-Monaghan, employment law editor
Updated to include a reference to Mears Homecare Ltd v Bradburn and others, concerning responsibility for maintaining national minimum wage records in a TUPE transfer.
Updated to include information on Mears Homecare Ltd v Bradburn and others, in which the EAT held that the duty to keep national minimum wage records moves to the transferee.
In Mears Homecare Ltd v Bradburn and others, the Employment Appeal Tribunal held that the duty to maintain national minimum wage records moves to the transferee on a TUPE transfer.
A model farewell letter from the transferor to individual employees shortly before a TUPE transfer.
A model welcome letter from the transferee to individual employees shortly after a TUPE transfer.
XpertHR's Policies and documents tool has been enhanced with the addition of a model farewell letter from a transferor to individual employees shortly before a TUPE transfer, along with a model welcome letter from a transferee to individual employees shortly after a transfer.
In Hare Wines Ltd v Kaur and another, the Court of Appeal upheld the tribunal's decision that the employee's dismissal was automatically unfair by reason of a TUPE transfer because the employer had not taken action to resolve her poor working relationships prior to the transfer, but did so by dismissing her at the time of the transfer.
Updated to include information on Tabberer and others v Mears Ltd, on whether or not a variation of contract was by reason of the transfer.
This article looks at the framework providing protection to staff transferring out of and between local authorities, in addition to that provided by TUPE.
HR and legal information and guidance relating to TUPE.