What if no employees transfer?

There can still be a TUPE transfer even if no employees transfer. It all depends on the reason why the transferor dismissed the staff before the transfer. If it was, for example, because of pressure from a buyer who refused to employ them, then TUPE will apply, transferring liability for their unfair dismissal to the buyer. By contrast, if it was for a reason unconnected to TUPE, for example, because there was not enough money to pay wages, TUPE will not apply and liability for the dismissals will not transfer.

The importance placed on the subjective motivation of the party dismissing the employees can cause serious difficulties for employees, and many have lost out, especially in the context of insolvency. For a well known example, see the case of Dynamex Friction Limited v Amicus [2008] EWCA Civ 381. Changes to the wording of Regulation 7 of TUPE, discussed in Chapter 6, will make the position for these employees even more challenging.