Some key facts about TUPE 





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




• TUPE is only triggered if 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. (For an unusual example of a case where a share sale did trigger TUPE, see Guvera Limited v Butler [2018] UKEAT/2017/0265/16/2111); 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 (one year in Northern Ireland);




• TUPE applies to both the public and the private sector;




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




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




• TUPE applies to internal reorganisations where the employer changes (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, transfers between government departments are not covered by TUPE. Instead, they are subject to the Cabinet Office Statement of Practice: Staff Transfers in the Public Sector (COSOP, see page 450);




• 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 page 451). Importantly, this means that the UK-based employer will be liable for a protective award if they fail to inform or consult properly before the transfer (see page 446);




• 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 changes or dismissals have nothing to do with TUPE, and are due to other factors, such as economic changes;




• changes to TUPE made in January 2014 have made it easier for employers to change contract terms after a transfer, especially where those terms are found in a collective agreement. However, consent is still required for any contract change. Where a union is recognised, agreement must be reached with the union (these changes do not apply in Northern Ireland);




• it is against the law for an employer to make an offer to employees, the main purpose of which is to end collective bargaining (for example, offering a cash inducement to transferring employees to give up their collectively agreed terms) — see Chapter 5, page 149.