Objecting to a transfer

The law allows employees to object to a transfer before it takes place, whether or not they have a good reason. This is because the law says that nobody can be forced to work for a new employer. However, simply objecting to a transfer is hardly ever a good idea because of the negative consequences of this step. Specifically:

• the employment contract will end automatically but the employee will not be treated as having been dismissed (Regulation 4(7), TUPE); and

• there will be no right to claim a redundancy payment or unfair dismissal (Regulation 4(8), TUPE).

After the objection, “the transferor may re-engage the employee on whatever terms they agree” (BEIS TUPE guidance, 2014).

An employee can object to a transfer by informing the old or the new employer. Any objection must be made before the transfer or else the employment will transfer automatically. It is not possible to transfer “under protest” (see Capita Health Solutions v BBC [2008] UKEAT 34/07 summarised on page 35).

There is one narrow exception to the requirement to object before the transfer, where the new employer’s identity is kept secret until after the transfer (New ISG Limited v Vernon [2007] EWHC 2665).