TUPE—protection against dismissal
TUPE—protection against dismissal

The following Employment practice note provides comprehensive and up to date legal information covering:

  • TUPE—protection against dismissal
  • Enhanced protection against dismissal
  • Remedies
  • Which employees enjoy the enhanced protection
  • Dismissal by reason of the transfer
  • Interaction between regulations 7(1) and 7(3) of TUPE 2006
  • Dismissal for an ETO reason
  • ETO reasons
  • Pre-transfer dismissal at transferee’s request
  • Dismissals by administrators
  • More...

The Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE 2006) provides additional protection to the employee where a dismissal occurs in a transfer situation.

See Practice Note: TUPE—the pre-January 2014 position—Protection against dismissal for information on the position for cases where:

  1. the TUPE transfer took place before 31 January 2014, or

  2. the date when any notice of termination was given by an employer or an employee in respect of any dismissal was before 31 January 2014 or, in a case where no notice was given, the date on which termination took effect was before 31 January 2014

Enhanced protection against dismissal

An individual will only be covered by this additional protection if he is able to bring an unfair dismissal claim, ie only if he is an employee (see Practice Note: Employee status) and has the requisite two years of continuous employment. For further information, see Practice Note: Entitlement to claim unfair dismissal.

The current cap on the compensatory award is the lower of:

  1. 52 times a week's pay for the claimant (unlike in the case of the basic award, a week’s pay is not capped by a statutory maximum in this context), and

  2. from 6 April 2020, £88,519

A TUPE-related dismissal is effective even if it is automatically unfair (the House of Lords overturned previous authority that such a dismissal was null and void).

Remedies

In theory,

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