Objecting to a transfer

The law allows employees to object to a transfer before it takes place, whether or not they have good reason. This is because the law says nobody can be forced to work for a different employer against their will. However, simply objecting to a transfer is hardly ever a good idea, because of the negative consequences of this step. Where an employee objects, the employment contract will terminate automatically, the employee will not be treated as having been dismissed and will have no right to claim either redundancy or unfair dismissal (Regulation 4(7) and 4(8) of TUPE).

Following the objection, “the transferor may re-engage the employee on whatever terms they agree” (BIS TUPE guidance, 2014). For information on re-engagement under the Retention of Employment Model see page 29.

An employee can object to the transfer by informing the old or the new employer. Any objection must be lodged before the transfer or else the transfer will happen automatically. It is not possible to transfer “under protest” (see Capita Health Solutions v BBC [2008] UKEAT 34/07 discussed on page 30).

There is an exception to the requirement to object before the transfer where employees do not know the transferee’s identity until after the transfer date (New ISG Limited v Vernon [2007] EWHC 2665).