Key facts

• TUPE is only triggered if the employer’s legal identity changes. This has two important consequences:

◊ TUPE is not normally triggered by a share sale, because the employer remains the same before and after the shares change hands; and

◊ TUPE is not normally triggered when an existing service provider bids successfully to retain their contract (because the service provider does not change);

• employees transfer to the new employer with all the existing employment rights and liabilities intact, although there are special provisions dealing with pensions under occupational pension schemes;

• any dismissal will be automatically unfair if the sole or principal reason for the dismissal is the transfer (but the employee needs two years’ service (one year in Northern Ireland) to claim);

• dismissals may not be automatically unfair if the dismissal is for an economical, technical or organisational (“ETO”) reason entailing a change in the workforce;

• employees are protected against changes to their terms and conditions in connection with the transfer, although amendments to the TUPE regulations in 2014 made it easier for employers to change contract terms if there is an ETO reason, or terms derive from a collective agreement.

TUPE protection is not time limited, but the more time that passes after the transfer date, the easier it becomes for the employer to argue that changes or dismissals have nothing to do with TUPE and are due to other factors, such as economic change.