TUPE FAQS FOR EMPLOYEES

See the full document FAQ employees document

 

What Does TUPE Mean?

If the business you work for changes hands, your terms and conditions are protected. Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended by The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (known as ‘TUPE’), the existing terms and conditions of your contract of employment will transfer automatically to your new employer. This means that you will normally carry on working for the new employer as before. If the new employer refuses to meet the terms of your contract, this will amount to a breach of contract.

In a TUPE situation, who is the ‘transferee’ and who is the ‘transferor’?

For the purposes of this document, the old employer is the transferor, while the new employer is the transferee.

Can employers avoid TUPE altogether or at least minimise its impact?

 No. The purpose of the TUPE Regulations is that they apply to protect the employees regardless of whether the transferee wants the employees or not.

Who transfers under TUPE?

 Employees who are employed in the undertaking immediately before the transfer will transfer to the new employer.  This includes full-time, part-time and fixed term employees. If just part of an undertaking is to transfer, only those employees dedicated to that part of the undertaking will transfer. In such circumstances consideration should be given to the amount of time that each employee spends in the part of the undertaking that is being transferred, and the employee’s job title, job profile and particular duties, in order to assess whether he or she will be a transferring employee. It is common practice in a business transfer to agree a list of the transferring employees.

Is my employer obliged to consult about a possible TUPE-transfer?

Employers contemplating a transfer must inform appropriate employee representatives before the proposed transfer takes place. Consultation must take place whenever an employer is envisaging measures in relation to affected employees. The obligation is to consult with trade union representatives and undertake meaningful consultation.

Employers must be receptive to the points made on behalf of affected employees and must give them proper consideration before deciding how to respond to them.

What information should be given to representatives of employees affected by a TUPE-transfer?

The employer of employees affected by the transfer (i.e. either the transferor or the transferee) must inform the appropriate representatives of any affected employees of the following:

• the fact there is a transfer happening
• date or proposed date when it is happening
• the reasons why it is happening
• the legal, social and economic implications for the affected employees
• the measures which the employer intends to take in relation to those employees
• if no measures will be taken, the fact that there won’t be any such measures
• if the employer is the transferor, the measures which they envisage the transferee will take in relation to any affected employees, or if they envisage no measures, that fact.   The new employer must give the transferor employer the necessary information so that the transferor employer is able to meet this requirement.

What information about me will be given to the new employer?

The transferor employer must provide the new employer with specified information that will assist in the understanding of the rights, duties and obligations in relation to those employees who will be transferred. This information is:

• the identity of the employees who will transfer;
• the age of those employees;
• information contained in the “statements of employment particulars”;
• information relating to any collective agreements which apply to those employees;
• instances of any disciplinary action within the preceding two years taken by the transferor in circumstances where the statutory dispute resolution procedures apply;
• instances of any grievances raised by those employees within the preceding two years in circumstances where the statutory dispute resolution procedures apply;
• instances of any legal action taken by those employees against the transferor in the previous two years and instances of potential legal actions which may be brought by those employees where the transferor has reasonable grounds to believe such actions might occur.

If only a few employees are to transfer to a new employer under TUPE regulations does the obligation to inform and consult still apply?

The obligation to inform and consult under the TUPE Regulations applies irrespective of the number of employees involved in the proposed transfer. 

What happens if the employer fails to consult or adequately inform employees about a TUPE-transfer?

Both the transferor and the transferee can be liable for a failure to inform or consult with the appropriate representatives.  A trade union representative, or an affected employee can bring a complaint if they feel that the employer has failed to adequately consult or inform employees about a TUPE transfer.

What would happen to the terms of my contract if I transfer under TUPE Regulations?

Employees employed immediately before the transfer automatically become employees of the new employer. The continuity of your employment would not be broken and you would keep all the rights and obligations under the contract of your employment with your previous employer.

Would my new employer (transferee) inherit my contract of employment from my current employer (transferor)?

When a TUPE transfer takes place, the transferee inherits the contracts of employment of the persons employed by the transferor immediately before the transfer took place. The transferee also inherits the transferor’s rights, powers, duties and liabilities (other than any criminal liabilities) in connection with those contracts.

What would happen to my pay if I transfer under TUPE?

Any pay award taking effect up to the date of transfer will be applicable.  If a pay award agreement is reached after the transfer date affected employees will receive backdated payment covering the period from the date of implementation up to the date of transfer.

Annual increments relating to the employee’s grade will normally continue based on the salary scale in place at the date of transfer.  This will not be subject to any pay awards taking effect after the date of transfer.

What would happen to my pension if I transfer under TUPE?

The Pensions Section will provide information to potential new employers (transferees) on employees’ membership with the Local Government Pension Scheme (LGPS). 

Potential transferees would bid on one of the following basis:

a)“admitted body status”:  As a result the Council would act as Guarantor in the event that the admitted body should cease to exist.  If approved, this would mean that transferring employees remain part of the LGPS and would see not real change in this respect. 

In cases whereby the transferee is seeking admitted body status, the Council’s employing Manager should liaise with the Pensions Section, who would then prepare reports to go to the relevant Council Committee and to the Pension Panel.  Providing these arrangements were approved, the Legal team would prepare an Admission Agreement, which would require the signature of contractor, employer and Aberdeen City Council as the Administrators of the Pension Scheme. 

b) Alternatively, the transferee would need to offer a broadly comparable pension scheme. The transferee would be required to submit a copy of the appropriate pension booklet which would be checked by the Actuary.

Could my new employer change the terms of my contract?

A transferee may not vary the contracts of employment of the transferred employees where the sole or principal reason for the variation is the transfer itself.  A variation would only be possible for an economic, technical or organisational reason, which could include a change of location.

A transferee cannot change employment contracts if the only reason is to make the terms and conditions of transferring employees the same as those of employees in its existing workforce. 

There is no time limit on this process.

When I transfer, should I be given all the contractual entitlements of the existing workforce?

No. TUPE does not grant employees contractual rights that are additional to the rights in place before the transfer.

When I am TUPE transferred does my continuous service start from the date of the transfer or from the start of employment with the transferor?

The new employer is obliged to honour the past continuous service.

Under the TUPE legislation, where an employee has a bad attendance or disciplinary record, is the new employer still obliged to accept the employee?

Yes. The transferee cannot pick and choose which employees it takes on.

What if I do not want to transfer?

The TUPE Regulations have the effect that an employee’s employment automatically transfers to a new employer. The employee’s job carries on as before with the new employer. The fact that the employer’s identity has changed does not, on its own, give the employee the right to prevent the transfer of his or her contract, or to claim constructive dismissal.

Where an employee informs either the original employer or the new employer that they object to becoming employed by the new employer, this will have the effect of terminating the employee’s contract and they will not be treated for any purpose as having been dismissed. This means that a refusal to transfer will mean that the employee has in effect resigned.

If I do not wish to transfer will I be entitled to redundancy pay?

No. There is no redundancy as the job continues with the new employers.  It follows that there is no entitlement for the employee to claim a redundancy payment.

If I do not wish to transfer can I be redeployed?

No. Your employment is not at risk since the job carries on as before with the new employer and therefore the redeployment policy will not apply.

I do not want to transfer and wish to tender my resignation.  To which employer should I submit my resignation?

Any resignation before or at the time of the transfer is best submitted to your current employer.  If, on the other hand, the transfer has already taken place when the employee resigns, the resignation will have to be notified to the new employer, as the individual’s employment will in fact have transferred before the resignation is submitted.

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