Q&As

Can an employer lawfully entice an employee to object to being TUPE transferred?

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Published on LexisPSL on 02/05/2019

The following Employment Q&A provides comprehensive and up to date legal information covering:

  • Can an employer lawfully entice an employee to object to being TUPE transferred?

Can an employer lawfully entice an employee to object to being TUPE transferred?

Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE 2006), SI 2006/246, reg 4(7) is the statutory successor to regulation 5(4A) of the TUPE Regulations 1981.

Regulation 5(4A) was inserted into the TUPE Regulations 1981 to expressly encapsulate the decision of the European Court of Justice (ECJ) in Katsikas v Konstantinidis that an employee cannot be compelled to join a new employer as a result of a TUPE transfer. An employee has an absolute right to object to a transfer. If that right is exercised then the employee’s employment comes to an end by operation of law, such that the employee has no right to notice pay and cannot claim unfair dismissal etc.

The current regulation 4(7) provides that:

‘Paragraphs (1) and (2) shall not operate to transfer the contract of employment and the rights, powers, duties and liabilities under or in connection with it of an employee who informs the transferor or the transferee that he objects to becoming employed by the transferee.’

For further information on the right to object to the transfer generally, see Practice Note: TUPE—transfer of employees—Employee right to object to the transfer. See also Precedent: Letter—TUPE (9) from employee objecting to transfer.

To turn to the specific issue in this Q&A: the circumstances in which it is likely to arise are

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