Some key facts about TUPE

• TUPE protects only employees, 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 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;

◊ TUPE is not normally triggered where an existing service provider bids successfully to retain their contract. The service provider does not change so TUPE does not apply;

• two years’ service is needed to claim 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 regardless of the size of the employer or the number of employees affected. There can even be a TUPE transfer where just one employee is affected (although note that the rules on 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 388);

• TUPE can apply to internal transfers and reorganisations where staff are required to move between different subsidiaries within the same group of companies (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. TUPE applies automatically when the identity of the employer changes;

• employers and employees are not allowed to agree themselves to exclude TUPE protection;

• 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 393);

• 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);

• TUPE protection does not run out after a set amount of time. However, the more time that passes after the transfer date, the easier it is for the employer to point to different explanation for its actions unrelated to TUPE, such as changes in economic conditions, or a reorganisation;

• the changes to TUPE in January 2014 have made it significantly easier for employers to change contract terms after a transfer;

• TUPE can apply to a business transfer even though some of the business is carried out unlawfully — for example, because the employer is breaking tax or regulatory laws (Ejiofor t/a Mitchell & Co Solicitors v Sullivan [2014] UKEAT/02868/13/SM).