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 replaces 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;

• TUPE applies whether or not a business is for profit;

• TUPE applies to a transfer regardless of the size of the employer or the number of employees affected. There can even be a TUPE transfer affecting just one person;

• TUPE applies to internal reorganisations that result in a change of employer. There does not need to be a formal sale and purchase agreement for TUPE to apply. TUPE applies automatically whenever the employer’s identity changes;

• Employers and employees are not allowed to agree between 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, revised in December 2013 (see page 438);

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

• TUPE protection does not run out after a set amount of time, but the more time that passes after the transfer date, the easier it becomes for the employer to argue that its actions have nothing to do with TUPE, and are justified by other factors such as changes to economic conditions;

• changes to TUPE legislation made in January 2014 have made it significantly easier for employers to change contract terms after a transfer, although consent is still required for any contract change;

• 
As with all other tribunal claims, tribunal fees must be paid in order to enforce rights under TUPE. See Chapter 13 for more information.