Transfer of undertakings overview

By Tolley in association with Dr John McMullen, Partner, Wrigleys Solicitors LLP and Visiting Professor of Law, Durham University

The following Employment Tax guidance note by Tolley in association with Dr John McMullen, Partner, Wrigleys Solicitors LLP and Visiting Professor of Law, Durham University provides comprehensive and up to date tax information covering:

Transfer of undertakings overview
What is TUPE?
When does TUPE apply?
Definition of undertaking
Assignment
What does TUPE transfer?
Information and consultation
Variation of contracts and dismissal
Insolvency
Pensions
Summary

Please note that all case references in this guidance note are subscription sensitive.

What is TUPE?

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246), commonly known as TUPE, have been in force since 6 April 2006. Up until that time the TUPE regime was contained in the Transfer of Undertaking (Protection of Employment) Regulations 1981. The TUPE Regulations were most recently updated in 2014 (SI 2014/16 ― subscription sensitive). This guidance note takes in the effect of those latest amendments.

TUPE is based on the European Acquired Rights Directive, 2001/23 concerned with the protection of employees on the transfer of undertakings. This means that:

•TUPE could apply whenever a business or individual buys something which has employees. It might look like an asset, or an activity, rather than a business, but TUPE may well protect those employees' rights.
For example, a shopping centre is likely to have cleaners, security guards or caretakers, whose employment could be transferred to a purchaser when it buys the building. Equally, if someone is taking over the provision of a service, the employees currently providing that service may become those person's employees.
•TUPE could apply regardless of who the employees' current employer is
•if the rights of those employees are threatened (eg by dismissal or reduction in pay or other rights), it is reasonable to expect that an employment tribunal will try to find that their rights are protected by TUPE

It is not possible to contract out of TUPE, but once the risks and liabilities resulting from it are identified, these can be managed commercially.

When does TUPE apply?

TUPE applies when there is a 'relevant transfer'. This covers: