There are three concepts to TUPE:
- The automatic transfer principle: employees transfer to the buyer who inherits all rights, liabilities and obligations in relation to them
- Protection against dismissal in connection with a TUPE transfer
- The obligation to inform and consult with representatives of the affected employees
TUPE applies to a “relevant transfer”, which means:
A transfer of a business or part of a business where there is a transfer of an economic entity that retains its identity. This involves three elements:
- An economic entity
- A transfer of that economic entity; and
- The economic entity retaining its identity following the transfer.
TUPE also applies to a client, having engaged a contractor to do work on its behalf, reassigning that contract to another contractor or bringing the work “in-house” (this is referred to as a service provision change). This can, therefore, encompass an initial (or first generation) outsourcing, a subsequent (or second generation) outsourcing or an in-sourcing. However, the supply of goods and “one-off buying-in of services” are excluded.
TUPE does not apply to a transfer of shares.
If you believe your employer has fallen foul of the TUPE regulations, you should seek specialist advice. We can help you.