TUPE – Transfer of Undertakings (Protection of Employment) Regulations

The Transfer of Undertakings (Protection of employment) regulations, known as TUPE, govern the transfer of an undertaking (that’s a business or part of one) to a new employer.  The TUPE regulations also cover changes in service provision thereby protecting workers who are assigned to a contract that is being reassigned or is being brought back in-house.

Warning: This page is no longer updated Although the information contained in this article is still relevant, more recent information on TUPE, including case law, FAQs and legal Q&As can be found on our dedicated TUPE page. Find up-to-date information on TUPE here or use the resources below: Employer FAQs on TUPE Employment law reference manual: TUPE Model TUPE policies and documents How to harmonise terms and conditions following the acquisition of a business

 

The TUPE regulations strengthen the rights of staff  involved in transfers, providing them with continuity of employment and the same terms and conditions as they had prior to the transfer.

What are the TUPE regulations? First introduced in 1981, the Transfer of Undertakings (Protection of employment) regulations were introduced to protect workers involved in transfers. They were introduced to comply with the European Community Directives covering the transfer of employees. The TUPE regulations have subsequently been amended and are now known as TUPE 2006.

When do the TUPE regulations come into effect?

TUPE 2006 came into force on 6 April 2006.

What are the main changes in the 2006 TUPE regulations?  

TUPE 2006 entirely replaces TUPE 1981.The main changes are:

• A widening of the scope of the Regulations to cover cases where services are outsourced, insourced or assigned by a client to a new contractor.
• A new duty on the old transferor employer to supply information about the transferring employees to the new transferee employer (by providing employee liability information.
• Special provisions making it easier for insolvent businesses to be transferred to new employers.
• Provisions which clarify the ability of employers and employees to agree to vary contracts of employment in circumstances where a relevant transfer occurs.
• Provisions which clarify the circumstances under which it is unfair for employers to dismiss employees for reasons connected with a relevant transfer.
• The rights and obligations in the 1981 Regulations remain in place, though the 2006 regulations contain revised wording at some points to make their meaning clearer, as well as reflecting developments in case law since 1981.

Source: Department of Trade and Industry 

History of TUPE

First introduced in 1981, the Transfer of Undertakings (Protection of employment) regulations were introduced to protect workers involved in transfers. They were introduced to comply with the following European Community Directives.

European Community Acquired Rights Directive 77/187/EEC. This was amended by the European Community Acquired Rights Directive 98/50 EC and these two directives were consolidated in the European Community Acquired Rights Directive 2001/23/EC.

TUPE case law 

Up-to-date TUPE case law can be found on our dedicated TUPE page.

Matthews & Others v Kent & Medway Towns & Fire Authority and Others – the House of Lords’ landmark judgment concerning the rights of retained part-time firefighters to the same pension and sick-pay benefits as full-timers.

• Sweetin v Coral Racing – compensation paid as a result of failure to inform and consult as required by TUPE consult.
• Baxter and others v Marks & Spencer and others – duty to inform and consult employee representatives about a TUPE transfer.  
• G4S Justice Services (UK) Limited v Anstey and others – case looks at dismissals and TUPE transfers. 
•  Skillbase Services Limited v King – The Court of Session has decided that time spent working on a particular project is only one factor to consider in determining whether an employee was assigned to a project in a TUPE transfer.
• Davies and Baig v Eton Air Limited – ruling says contract loss is not a TUPE issue.

The following three cases look at when a job is covered by TUPE:

• Botzen v Rotterdamsche Droogdok Maatschappij BV.
• Birmingham City Council v Gaston.
• Celtec Ltd v Astley.

Legal advice for employers

• Employment law reference manual on TUPE
• A guide to the 2006 TUPE Regulations for employees, employers and representatives from the department for Business, Innovation and skills
  
• Julie Quinn, partner, and Sarah Henchoz, associate, Allen & Overy provide answers to TUPE 2006 questions.
• Employer FAQs on TUPE
• Model TUPE policies and documents

 

Up-to-date TUPE news can be found on our dedicated TUPE page.