TUPE—transnational transfers
TUPE—transnational transfers

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

  • TUPE—transnational transfers
  • Brexit impact
  • Initial considerations
  • The territorial scope of TUPE 2006
  • Judicial consideration of transnational transfers
  • Practical issues

This Practice Note examines the territorial scope of the Transfer of Undertakings (Protection of Employment) Regulations 2006, SI 2006/246 (TUPE 2006) and the application of TUPE 2006 to transnational (cross border) transfers, eg in relation to offshoring or near shoring outsourcing exercises.

For further information on international outsourcing generally, see Practice Note: International outsourcing.

Brexit impact

This Practice Note contains information on subjects impacted by the UK’s withdrawal from the EU. For preliminary reading on the impact of Brexit on this subject area, see Practice Note: Brexit—implications for employment law—Impact on TUPE.

Further guidance and materials on the legal terms and impact of Brexit are available in our Brexit toolkit. You may find it useful to refer to this material before continuing your research.

Initial considerations

Where a dispute or claim arises in respect of an employee who works wholly or partly abroad and/or has a foreign employer, two questions will need to be determined:

  1. what are the employee’s rights?

  2. where should any litigation that may ultimately arise be adjudicated?

In determining these questions, three main issues arise:

  1. applicable law, ie which system of law is applicable to the contract of employment under consideration?

  2. international jurisdiction, ie whose courts and/or tribunals should decide the case?

  3. the territorial scope of relevant applicable or mandatory law, ie how the courts and employment tribunals decide