Some key facts about TUPE

• TUPE protects only employees (see Chapter 2), not agency workers or the genuinely self-employed;

• TUPE is only triggered when there is a change in the legal identity of the employer, in other words, where one employer is replaced by another. This is the reason why TUPE is never triggered by a share sale. It is also the reason why TUPE protection is not available where a service provider successfully bids in a re-tender to retain an existing service contract;

• two years’ service is needed for a claim for unfair dismissal based on TUPE;

• TUPE applies to both the public and the private sector and regardless of whether a business is for profit;

• TUPE rights apply irrespective of the size of the employer and regardless of how few employees are affected. There can even be a TUPE transfer where just one employee is affected. The rules on TUPE information and consultation have changed for transfers on or after 31 January 2014 for businesses employing less than 10 employees where no union is recognised (see page 370);

• TUPE can apply to internal transfers and reorganisations where staff are moved between different employer subsidiaries of the same organisation (Allen v Amalgamated Construction C-234/98 [2000] IRLR 119). There does not need to be a formal sale and purchase agreement for TUPE to apply;

• in the public sector, intra-governmental transfers are not covered by TUPE. Instead, they are subject to COSOP: the Cabinet Office Statement of Practice: Staff Transfers in the Public Sector (see page 376);

• TUPE can apply where jobs are transferred out of the UK, even to a non-EU country, as long as the old employer is based in the UK (Hollis Metal Industries Ltd v GMB & another [2008] IRLR 187);

• where there is a relevant transfer, TUPE is triggered automatically by the law. TUPE protection does not depend on the agreement of the parties. Employers and employees are not allowed to agree between themselves to exclude TUPE protection where it applies;

• TUPE protection does not run out after a set length of time. However, the more time that passes, the easier it becomes for the employer to produce an explanation for its actions unrelated to the transfer, such as changes in economic conditions, or a reorganisation. It has always been possible to agree changes to contracts, or carry out dismissals for reasons that have nothing to do with TUPE;

• TUPE changes affecting all transfers on or after 31 January 2014 make it significantly easier to change contract terms after a transfer.