Some key facts about TUPE 




• TUPE protects only employees, not agency workers or the genuinely self-employed;



• TUPE is only triggered when the legal identity of the employer changes, 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; and



◊ 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 in 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 (for example, from one subsidiary to another). 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 436);



• 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). In particular, this means that the UK-based employer remains liable for a protective award if they fail to inform or consult properly on the transfer (see page 434);



• 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 the result of 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. However, consent is still required for any contract change. These changes do not apply in Northern Ireland;



• since TUPE is based on an EU Directive, some of its key protections are vulnerable to change as a result of the vote to leave the EU. See the box on page 20, Chapter 1.