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

4.78 Average

143 Reviews

Liz P

An excellent professional service was provided by Chris Hadrill and Mel Chin. Efficient and trustworthy - would highly recommend this company.

Posted 6 days ago

Anonymous

Redmans Solicitors were great. They were able to advice me quickly and efficiently! I would recommend them, as a good solicitors to use.

Posted 6 days ago

Anonymous

Extremely efficient. Mel made a difficult situation bearable and gave good clear guidance thoughout.

Posted 1 week ago

Anonymous

Thanks Chris and Sacha I was reassured throughout the process and a happy outcome

Posted 1 week ago

Edward F

Good and clear employment advice

Posted 1 week ago

Richard O

Chris at Redmans is my go-to legal expert when it comes to employee-related matters. His depth of knowledge, experience and considered approach to problems and their solutions is highly valuable. I cannot recommend Redmans highly enough.

Posted 3 weeks ago

Rory Y

They provide me with timely and clear advice!

Posted 3 weeks ago

Steven C

Redmans handled my settlement with my employer quickly, decisively and to a standard that I was very happy with. I would in similar circumstances contract them again

Posted 3 weeks ago

Deepthi K

Transparent. Clear communication. Prompt reply’s. Saves lot of time. Very satisfied.

Posted 3 weeks ago

Anonymous

Chris and Sacha did a fantastic job and negotiated a significant better settlement agreement

Posted 3 weeks ago

Dino D

I did get a very swift and god service from Redmans

Posted 3 weeks ago

Stephanie H

Clear, prompt, effective support from Chris which has been very much appreciated. Thank you again.

Posted 1 month ago

Anonymous

I would highly recommend Redmans Solicitors, the team were very friendly and my case was dealt with professionally and efficiently. Thank you!

Posted 1 month ago

Shane M

Very professional, welcome advice at a crucial time. Always available and reasonable cost.

Posted 1 month ago

Anonymous

My case was relatively straight-forward. But even so, working with Redmans was easy, quick, professional & clear. Many thanks

Posted 1 month ago

Anonymous

The team were very helpful and answered all my questions regarding my redundancy. Initially I had a call with one of the representatives who escalated my request to a suitable employment solicitor. We arranged a call to discuss the settlement and she helped answer all my questions. We then mainly contacted through email which helped resolve the settlement quickly and convently. Thanks for all the help.

Posted 1 month ago

Djaouida T

You have good communication.

Posted 2 months ago

Anonymous

Fast and professional. A highly recommended company for employment related issues.

Posted 2 months ago

Anonymous

Very professional service.

Posted 2 months ago

Brittany

I was very grateful for Redmans to treat my case with respect and discretion. At the time, I was very new to London and it was meaningful to have someone on my side and win the case for me. Without any doubt, I would definitely recommend Redmans Solicitors to anyone who is in need of it.

Posted 9 months ago

Jake L

Chris is very professional and calm. Very attentive and patient, been a positive experience having Chris represent me, and would recommend him.

Posted 11 months ago