No right to refuse to employ employees with a poor disciplinary record

Under TUPE, everyone employed by the transferor immediately before the transfer automatically becomes an employee of the transferee from the transfer date. A transferee cannot pick and choose which of the transferor’s employees to take on. In particular, transferees are not allowed to reject employees on the basis of a poor disciplinary or bad attendance record or because they are suspended from work due to a disciplinary investigation. Someone in this situation (provided they had two years’ service) would normally be entitled to treat themselves as dismissed and issue a claim for unfair dismissal against the transferee.

TUPE does not prevent fair dismissals for a reason unconnected with the transfer, such as gross misconduct.