According to conciliation service ACAS, TUPE regulations “protect employees’ rights when the organisation or service they work for transfers to a new employer”.
The full name of this set of regulations is the Transfer of Undertakings (Protection of Employment) Regulations 2006.
These were updated and amended in 2014 by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014.
There are two main situations when the TUPE regulations may apply and they are split out into business and service provision transfers:
TUPE stands for Transfer of Undertakings (Protection of Employment) Regulations 2006. It sees employees of a previous employer automatically become employees of a new employer at the point of transfer.
New employees carry with them all of the employment terms, conditions and rights, as well as their continuous service history, from the old employer across to the new one.
The employees moving should continue to enjoy the same employment terms as they previously did under the old employer.
This can lead to a situation where, after a transfer, the new employer finds that they have employees working for them with very different terms and conditions and, in some cases, a new employer will want to harmonise the terms and conditions between the new and existing employees.
Yet changes to the working conditions of the new workers compared to their previous conditions are not permitted under TUPE, which protects against such harmonisation for an indefinite period if the sole or principal reason for the change is the transfer.
Employers must inform / consult with employees through “appropriate” elected representatives. If there’s a trade union, this may include representatives from the union.
Without a trade union, these representatives would be formally elected employee representatives voted to do the job by their colleagues.
Employers must give certain information about the transfer in writing, including:
The emphasis when undertaking a TUPE transfer is on dialogue between the employers (old and new) and the employees. Although much of this dialogue is a legal requirement, it’s important to really make sure the workforce on both sides of the transfer are as engaged as possible to ensure a smooth process.
Head of Employee Benefits at Drewberry
At Drewberry, we’re experienced in offering TUPE advice to those wanting to transfer over new employees with existing insurance or pension rights. If you need help then please don’t hesitate to pop us a call on 02084327333. We can organise suitable insurance that meets your company’s obligations.
Employee Benefits Consultant at Drewberry
This is a very difficult area. The answer depends largely on whether the benefits are ‘contractual’, i.e. written into the employees’ contracts as an intrinsic part of their working rights.
If so, it’s not generally possible to reduce employee benefits, such as Group Medical Insurance, after a TUPE transfer. This applies even where it may be expensive to provide these benefits and where you do not offer such benefits to existing staff.
Removing a contractual benefit post-TUPE may, if the employee can prove that it was the sole or principal consequence of the transfer, be deemed unfair. This could allow the employee to resign and make a claim for constructive unfair dismissal.
If the benefits are ‘discretionary’, i.e. the power to vary or remove them is written into your new employees’ contracts, you may be able to reduce or remove their benefits. However, you should think carefully before doing so as this could significantly impact on the morale and productivity of the new staff members.
Moreover, even where there is no contractual breach, the proposed withdrawal of a benefit from a employee that gives rise to a substantial change in the working conditions to an employee’s material detriment may entitle an employee to treat him or herself as dismissed under clause 4(9) of TUPE.
Such a claim is similar to a standard constructive unfair dismissal claim, although there is no need to establish a fundamental breach.
If you need to replicate an employee benefit schemes for newly transferred employees, please don’t hesitate to pop us a call on 02084327333 for fee-free advice.
One of my recent clients was taking on six employees who had Death in Service built into their contract.
This had to be replicated under the TUPE regulations, so they came to us for some help and we were able to find the most competitive way to provide these benefits and meet their legal obligations.
Head of Employee Benefits at Drewberry
Drew was incredibly helpful all the way along and very responsive and patient with any questions I had (which were many). He was able to get me a much better deal on my new health insurance than I had been able to get online. A success all round!