Workforce reorganisation in the run up to a transfer

Employers often use the run-up to a transfer to reorganise or rotate the workforce so that only chosen groups of employees are “in scope” for the transfer (i.e. assigned to the organised grouping) by the transfer date. Sometimes, this is done to enable employees to remain with their existing employer. This is necessary because otherwise, the employment will transfer automatically, whether or not the employees or the employer want this. As the 2014 BIS guidance makes clear, TUPE “does not prevent the transferor from retaining those individuals whom they had permanently re-assigned to other work outside the organised grouping in advance of a transfer”.

Under Regulation 4 of TUPE, the employment contract of any employee who remains inside the organised grouping will transfer automatically on that date unless they object to the transfer before the transfer date (Royal Mail Group Limited v CWU UKEAT/0338/38, Capita Health Solutions v BBC [2008] UKEAT34/07).

Employees should be informed and consulted in good time about any planned pre-transfer reorganisation (see Chapter 4). Where there is a recognised union, consultation must be with the union.

Employees within the organised grouping on the transfer date who want to transfer cannot be forced to remain with their employer.