Q&As

A company is considering entering into a joint contract of employment with another company, so that the employees are jointly employed by both companies as joint employers. At present, the employees are employed by only one of those companies. Will this give rise to a TUPE transfer, or is this simply a change to the employees’ terms and conditions? Should one of the companies decide that it no longer wishes to be a joint employer in the future and the employees move back to being solely employed by one of the companies, will this give risk to a TUPE transfer, or is this simply a further change to the employees’ terms and conditions?

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Produced in partnership with Chris Bryden of 4 King’s Bench Walk
Published on LexisPSL on 31/03/2020

The following Employment Q&A Produced in partnership with Chris Bryden of 4 King’s Bench Walk provides comprehensive and up to date legal information covering:

  • A company is considering entering into a joint contract of employment with another company, so that the employees are jointly employed by both companies as joint employers. At present, the employees are employed by only one of those companies. Will this give rise to a TUPE transfer, or is this simply a change to the employees’ terms and conditions? Should one of the companies decide that it no longer wishes to be a joint employer in the future and the employees move back to being solely employed by one of the companies, will this give risk to a TUPE transfer, or is this simply a further change to the employees’ terms and conditions?

It is sometimes the case that an employee can have more than one employer, and their contract of employment makes clear that this is the case. Joint employment should be distinguished from arrangements such as secondments, where the sole employer lends their employee’s services to a third party, or from sole employment where the terms of the contract allow the employer to direct the work of an employee to a third party. A contract of joint employment should clearly set out the basis upon which each joint employer exercises control over the employee, and may require an indemnity as between the joint employers in the event of an employment tribunal claim.

The question of whether a transfer from sole employment to an employment contract with several employers which includes the original employer would be a relevant transfer for the purposes of Transfer of Undertakings (Protection of Employment) Regulations (TUPE 2006

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