Can the transferor, the transferee or the employees contract out of TUPE?

No. The effect of TUPE is automatic. None of the parties, including the employees, can contract out of TUPE. Wherever TUPE applies, the employment contracts of staff who are in scope (see page 31) transfer automatically to the new employer, unless they object to the transfer before it takes place.

Agreements to vary a contract of employment in breach of TUPE are void, and a compromise agreement intended to agree a contractual variation in breach of TUPE will not be valid. These issues are discussed in greater detail in Chapter 5.

A compromise agreement can, however, be used to settle a claim for dismissal, even though the dismissal relates to a TUPE transfer (Solectron Scotland Limited v Roper [2003] UKEAT 0305/03/3107). A compromise agreement cannot be used to contract out of an employer’s duty to inform or consult under TUPE (see Chapter 4).