Transfer of undertakings

When does a TUPE transfer take place?

A TUPE transfer takes place when there is a ‘relevant transfer’ or a ‘service provision change’. A TUPE transfer means that certain rules apply, as per the Regulations. Essentially it means that the employee with Company A, when transferred to Company B, is retained on the same terms and conditions as they were on in Company A.

Can an employee be dismissed where there is a TUPE transfer?

Yes. The question then arises about whether the dismissal was fair, or can be challenged. Where the sole or principal reason for the dismissal is the transfer itself, or a reason connected with the transfer that is not an economical, technical or organisational reason entailing changes in the workforce, then the likelihood is that the dismissal is regarded as automatically unfair. Where there is an economic, technical or organisational reason, then the dismissal is potentially fair.

My employer is merging with another company and their offices will be the ones used. These are based 500 miles away, what can I do?

If your employer insists that you are to relocate, then you need to firstly decide whether you want to transfer. If you do not you need to raise your objection, and resign. Your objection needs to raise the fact that the transfer would be to your material detriment since it involves a substantial change in working conditions. You have the right to object to such a move, and you should raise this as a grievance. You can then pursue a claim for unfair dismissal, and your success will depend on the reasons for the move of offices. You should resign before the merger takes effect, or as quickly as possible afterwards.