Hi,

Can anyone help? I work for a company that is about to transfer 35 staff over to a new contractor under TUPE, however we have alternative vacancies within other parts of the business and would like to offer these positions to some of the employees on the TUPE transfer list. Are we able to do this provided we give the employees a choice of whether to be tupe'd or not? From our consultation meetings alot of employees have stated their wish to stay within the company and not be transfered. Do we have to open the vacancies out to all the employees on the TUPE list?

Hi Rose,

Usually there is no real problem with doing this and it does happen quite often.  Employees who might otherwise transfer to a new employer under TUPE have a right to object to transfer and this will mean that their employment just ends without an obligation on the old employer to find work for them.  In my experience, however, employees exercise their right to object in exactly the situation that you have, i.e. when they know there is a job for them where they already work. 

Before you proceed to offer them employment, you should check first of all whether you have pre-existing contractual obligations which prevent you from offering such employment to existing employees, for example in the contract that you have with the customer who has awarded the work to the proposed new employer.  This is also not uncommon, and it might mean that you will be in breach of contract if you do try to retain the employees in your business.

Hope this helps

Paul

Hi Paul,

Thanks for that. I'll check to see if there are any contractual obligations

Rose