Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

The Transfer of Undertakings (Employment of Employment) Regulations 2006 (“TUPE”) provide employees with certain rights and protections when the business they are working for is acquired by another business. It implements the Acquired Rights Directive in England and Wales.

TUPE provides employees with four particular broad rights when a “relevant transfer” takes place. It also provides the transferee (the business which is purchasing the other business) with the right to be provided with certain information regarding the transferring employees. There are also specific regulations which apply when an insolvent business is being acquired.

This post will tackle the circumstances in which a “relevant transfer” takes place (and therefore the TUPE regulations ‘kick in’). This will involve an examination of the law but will also include the use of examples to illustrate and simplify the potentially complex law involved.

When does a “relevant transfer” take place?

A relevant transfer can take place if one of two circumstances occur:

  1. A business transfer takes place; or
  2. A service provision change takes place

Business transfer

To test whether a business transfer has taken place three fundamental questions must be asked:

  • Was the undertaking (the business) a stable economic entity prior to the transfer?
  • Was there a transfer?
  • Was the undertaking transferred in a recognisable form?

Was the undertaking (the business) a stable economic entity prior to the transfer?

This ultimately involves the question of whether the transferor was an ongoing economic enterprise at the time of the transfer. In order to determine whether an ongoing economic enterprise exists a number of factors are looked at (among others):

  • Was there a stable group of wage earners at the transferor?
  • Is the whole or part of the business being transferred?

There normally must be a stable group of wage earners present for there to be deemed an ongoing economic entity to exist. TUPE can apply to both whole businesses and parts of businesses – but whether it applies to parts of businesses depends on the type of business that is being transferred and the “framework” of the part of the business. TUPE doesn’t also necessarily have to apply to just private industry – it can also include non-commercial ventures: the NHS, local education or non-profit organisations.

Has the undertaking been transferred?

The courts will look at the particular facts of the case to determine whether a transfer has taken place. However, the transfer doesn’t have to take place in one transaction – it can take place over a number of transactions and doesn’t necessarily have to be proximate in time (i.e. it can take place over a long period of time).

Was the undertaking transferred in recognisable form?

Again, the courts will look at the facts of the particular case to determine whether the undertaking has been transferred in a recognisable form. The first question to ask is: does the business retain its identity? The greater the similarities between the business prior to and after the transfer, the more likely it will pass the test. For example, if a chocolate factory is converted to a nightclub after the transfer then it is probable that it will not be deemed to have transferred in recognisable form. Relevant factors which determine whether the business retains its identity include (among others):

  • The type of business or undertaking involved
  • Whether the transferor’s tangible assets (buildings, equipment etc.) have been transferred
  • The degree of similarity between activities carried out before and after the transfer

Service provision change

Services provision changes (or “contracting out”) can also be covered by TUPE if the majority of its employees are transferring, the intention of the parties is that the provision of services will transfer, and that the transferee has tendered on the basis that TUPE applies.  Should these three conditions apply then the normal rules related to above apply: has the business actually transferred?

Examples of service provision changes include, for example, the transfer of hospital cleaning services from one contractor to another or an educational college terminating a catering contract in order to provide its own services.

About

Redmans Employment Team deal with employment matters for both employers and employees, including drafting employment contracts and policies, advising employers and employees on compromise agreements, handling day-to-day HR issues, advising on restructures, and handling Employment Tribunal cases for both employers and employees Call 020 3397 3603 to speak to one of the members of our employment team or email us on enquiries@redmans.co.uk. Redmans have offices in Richmond, Chiswick, Hammersmith, Fulham, Kingston, Wimbledon, Ealing, Kings Cross and Marylebone (meetings strictly by appointment only).

Tagged with →  

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Share →

Leave a Reply

Your email address will not be published. Required fields are marked *

 

Our awards

Request a callback

Your name

Your email

Your telephone number

Contact us

Please feel free to discuss your own position and concerns. Contact your nearest office on:

T: 020 3397 3603
E: enquiries@redmans.co.uk
W: www.redmans.co.uk

Testimonials

4.73 Average

92 Reviews

Anonymous

Redmans Solicitors provided a professional and prompt service in dealing with my settlement agreement. They used their experience to negotiate a better deal for which I am grateful for. I highly recommend their services.

Posted 1 day ago

Cheryl R

Very efficient and friendly lawyers. I have used Redmans twice now and Chris Hadrill has been amazing to work with. Would highly recommend Redmans.

Posted 1 day ago

Anonymous

I found Redmans Solicitors to be extremely professional, dealing with my questions and concerns quickly and in detail. I would have no hesitation in recommending Redmans Solicitors to anyone.

Posted 1 day ago

Anonymous

I requested Redmans services on a redundancy case. Both Chris and Rana were great, thoughtful, very professional and responded quickly. They were very clear throughout the entire process, regarding the process and my options and I couldn't feel I had better legal advice for my case. Overall excellent service and I would certainly recommend and use their services again.

Posted 5 days ago

Anonymous

Responsive, patient, thorough and personable - an excellent service.

Posted 1 week ago

Anonymous

The team at Redmans, Chris Hadrill and Sacha Barrett were always very helpful and had expert knowledge to assist me during my employment law matter, I would not hesitate to recommend them to all!

Posted 1 week ago

Arun T

Chris was punctual, attentive and accurate. He answered my questions with clarity and avoided dubiosity. I would recommend him to anyone seeking legal advice within his remit.

Posted 1 week ago

Yulian Z

Great service

Posted 1 week ago

Anonymous

Excellent, professional service and a speedy resolution. Many thanks

Posted 1 week ago

Taral P

Sacha and Chris were both very helpful in closing out my matter. Sacha was very clear in helping me understanding the documents I needed reviewing, providing a professional service throughout.

Posted 1 week ago

Anonymous

Really pleased with the swift and professional service from Redmans. They provided very clear advice and helped conclude my matter with the minimum of stress or delay.

Posted 1 week ago

Matthew L

Redmans were very quick to respond to my initial enquiry, and provided me with a very effective and efficient service, generating a most satisfactory outcome. I would definitely use them again if the need arose.

Posted 1 week ago

Anonymous

First rate service. Warm and friendly whilst exceptionally efficient at the same time. I would highly recommend them.

Posted 1 week ago

Anonymous

Professional and helpful. Thorough and supportive.

Posted 1 week ago

Richard A

Excellent service, prompt replies, great advice

Posted 1 week ago

Anonymous

Very professional services

Posted 1 week ago

Margaret

Redmans Solicitors took a lot of the worry away and were very thoughtful and meticulous in their dealings with my case , thank you very mush , great service and a great job

Posted 1 month ago

Mark B

Prompt efficient service. Hourly, and part thereof, billing got a bit stressful at times - as opposed to flat fee - made me think twice about sending an email or making a quick call when I had a query because it would have eaten up minutes from my budget. But happy with the legal service I received overall and would recommend.

Posted 1 month ago

Anonymous

Chris Hadrill has provided a truly wonderful service and was willing to lend his support and expertise at a time when other solicitors, only wanted to discuss their fees! A clear thinking and down to earth professional, Chris can be trusted to listen carefully to your matter, cut through the fog, and advise you on the best (and most realistic) way forward, saving you time, money and heartache. It will be helpful if you first get your ducks in a row in terms of documents / evidence etc. and then contact Chris, (that’s what we did) as this will help your matter to be dealt with faster. The more organised and together you are the more successful you will be. You'll be fine with Chris, I highly recommend him. Good luck!

Posted 1 month ago

Richard v

Excellent Service

Posted 1 month ago

Anonymous

Very happy from service received. Highly recommend

Posted 1 month ago