What rights does TUPE give me?

The Transfer of Undertakings (Protection of Employment) Regulations 2006, commonly known as TUPE, exist to protect your existing terms and conditions of employment and legal rights when your employment transfers to a new employer. This commonly happens when:

• The company you work for is sold or transfers to a new owner. This can include where two companies combine to form a new company or where one company takes over the business of the other.

• A service previously undertaken by your employer is awarded to a contractor (called 'contracting out' or 'outsourcing').

• A service contract is assigned to a new contractor during a retendering process.

• A service contract to which you're assigned ends with the service being taken 'in-house' by the client.

Under TUPE, employees of the outgoing employer automatically become employees of the incoming employer at the point of transfer. They retain their continuous service and should continue to enjoy the same terms and conditions of employment.

TUPE also protects your terms and conditions of employment where the new employer is seeking to change them to your detriment following a transfer. For example, if you currently work on weekdays only but under the new arrangements you would be expected to work at weekends, or if your new employer is proposing to change your pay, benefits or bonus, you might have every reason to feel that your rights have not been protected.

It's also a requirement under TUPE that employees are consulted before a transfer takes place, particularly in relation to any 'measures' that the incoming and outgoing employers are expecting to make. The regulations do not define the term 'measures' but they're likely to include changes to existing work practices such as pay rates, job descriptions and hours of work.

If the ownership of the company, service provider or part of the business you currently work for is about to change and you're worried about your rights being infringed, you may wish to speak to one of experienced employment solicitors about your rights under TUPE.

Will TUPE make sure that my rights aren't affected?

While TUPE is designed to protect your rights and ensure that you're not left worse off if your employer's business, part of the business or the service provider you work for is transferring to another person or company, the fact is that when a transfer has taken place your new employer may still seek to harmonise contracts of employment.

This can mean that if the employment contracts of the business you've transferred to provide less favourable benefits to those you currently enjoy, attempts may be made by your new employer to replace your original terms and conditions of employment with the same terms as their existing employees.

Naturally, the new employers may see this as a necessity, as their existing employees are likely to be unhappy if they learned they were on less favourable terms than employees who recently transferred into the business.

Harmonisation can therefore often mean giving up more favourable terms and conditions of employment that you previously enjoyed. Some employers may offer other benefits or perks that you may not currently enjoy, as a means of encouraging you to agree to the change to your terms and conditions. Other employers may use the threat of redundancies or dismissing you and re-engaging you on new terms and conditions as a means of getting you to agree to 'harmonisation'.

It's a common misconception of employers that they can alter your terms and conditions of employment following a transfer if they simply wait for a period of time post-transfer before making the changes or harmonising.

It's important for employees to know that TUPE protects against change/harmonisation for an indefinite period if the sole or principal reason for the change is the transfer unless your employer can show an economic technical or organisational (ETO) reason entailing changes in the workforce and relating to the numbers or functions of the employees affected.

Should this happen, it's quite possible that your rights under TUPE have been infringed.

In addition to protecting your terms and conditions of employment, TUPE can also protect you from dismissal. If your employer is seeking to dismiss you after a TUPE transfer and the sole or principal reason for the dismissal is connected to the TUPE transfer, you may have a claim for automatic unfair dismissal, unless your employer can show an economic technical or organisational (ETO) reason for the dismissal entailing changes in the workforce.

If you're being asked to forego your existing contract of employment and accept a new one following your employer's business, part of the business or the service provider you work for transferring to another person or company, or your employer is looking to dismiss you after a transfer, you should take specialist legal advice and speak to one of our experienced TUPE solicitors right away. This is an extremely complex area of employment law, and the only way you can be sure of getting a fair deal is to talk to a solicitor with TUPE expertise.

Where can I get more information about employment contracts?

Our experienced employment contract solicitors have written two free guides that cover the intricacies of Post Termination Restrictive Covenants and Permanent Health Insurance. These are both free to download; and when you want specific guidance on these or any other subject relating to employment rights and contracts, you can call us on 0330 041 5869 or contact us and we'll call you.