What is Transfer of Undertakings (Protection of Employment) Regulations (TUPE)?

For any organisation considering bidding for a contract, buying or taking over a business or service or building from which services are delivered, the implications of the ‘Transfer of Undertakings (Protection of Employment) Regulations 2006’ (generally referred to as TUPE) and the various regulations, statutes and case law that surround it need to be considered carefully.

The implications of TUPE can ‘make or break’ an asset transfer proposition, therefore, it is essential that any TUPE liabilities are identified as soon as possible in the process, in negotiation with the transferring public body, typically a local authority.

TUPE has developed since 1981 and is designed to protect employees when the organisation or service within which they are employed changes hands and there is a ‘relevant transfer’. The definition of employee under TUPE is wider than its usual meaning. It includes, “any individual who works for another person, whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services”.

Therefore it will include people who work under a contract who may not meet the usual tests for being an employee but nonetheless carry out work personally and are not genuinely self-employed.

Any challenge about whether or not TUPE applies and any related issues will be decided by an Employment Tribunal.

This guidance is simply that and cannot replace appropriate legal advice – appropriate means a qualified lawyer with experience in legal advice on TUPE. It is important to remember that a lawyer can provide advice to the best of their knowledge and experience but it is advice, an opinion, not fact.

Read our full Guidance Note on TUPE here