For TUPE to apply, must there be a formal transaction, like a sale or merger?

No. TUPE can apply, for example, to intra-group transfers and reorganisations, as long as there is a change in the identity of the employer (Allen v Amalgamated Construction C-234/98 [2000] IRLR 119). Reps and employers involved in intra-group reorganisations do not always appreciate that TUPE protection is triggered in these circumstances.

The lack of a formal transaction can also make it difficult to be certain about the transfer date. However, this will not prevent TUPE applying to transfer the employment automatically from one employer to another, even if none of the parties appreciated this at the time (North Wales Training and Enterprise Council Limited (t/a Celtec v Astley) [2006] UKHL29). Failure to realise that TUPE has transferred the employment until it is too late can result in liability for substantial protective awards for failing to inform and consult employees (see Chapter 4).