TUPE: what transfers with the people, and what has to be told to whom

TUPE — the Transfer of Undertakings (Protection of Employment) Regulations — protects employees when the business they work in changes hands, or when a service they provide is outsourced, brought back in-house, or moved to a different contractor. Their employment does not end and restart: it transfers, with continuity of service and existing terms intact.

This is one of the areas where getting the process wrong is expensive and getting professional advice is genuinely worth it. What follows describes the shape of the obligations so that they are recognised in time — it is not legal advice, and the specifics of any transfer deserve a lawyer.

What transfers under TUPE

• The employment contracts of employees assigned to the transferring business or service, on their existing terms.
• Continuity of service, with the original start date preserved.
• Most accrued rights and liabilities, including outstanding claims — which is why the buyer cares about the seller’s employment history.
• Collective agreements in force at the time of transfer.
• Liability for pre-transfer acts and omissions, in most cases.

Occupational pension rights are the notable partial exception, with separate rules that do not simply carry across. And dismissal because of the transfer itself is automatically unfair, subject to defined exceptions — reorganising the workforce on day one is not a free hand.

The information both employers owe

1. The outgoing employer provides employee liability information to the incoming employer — identities, ages, terms, disciplinary and grievance history within defined periods, and outstanding claims — at least 28 days before the transfer.
2. Both employers inform representatives of affected employees about the fact of the transfer, when, why, and the legal, economic and social implications.
3. Where measures are envisaged — changes affecting employees — there must be consultation, not merely information.
4. Where there are no existing representatives, they must be elected, which takes time and has to be planned into the timetable.
5. Records of what was provided and when should be kept by both sides; failures here are the most commonly litigated part.

The 28-day employee liability information deadline is often missed because the deal is still confidential at that point. Confidentiality does not extend the deadline. Where the timetable is tight, the sequencing has to be worked out early rather than discovered a fortnight before completion. The receiving side should also plan the employee onboarding checklist for people who are not new joiners.

Changing terms afterwards

Harmonising terms across a merged workforce is the usual commercial wish and the usual legal problem: changes for a reason connected to the transfer are generally void, even where the employee agrees, with limited exceptions. The practical answer is patience and proper process rather than a variation letter in month two.

The same caution applies to redundancies. Genuine reorganisations can happen, but the reason has to stand on its own — and it will be examined against the timing.

Keeping the paperwork straight

A transfer produces a dense set of documents in a short window: the liability information, the letters to representatives, meeting notes, the consultation responses, and the induction paperwork for people who are not new joiners. Ettex Docs keeps those with their dates and versions, so the record shows what was said and when — which is exactly what a later claim tests. What TUPE requires in a specific transfer is a legal question, and the shape above is a prompt to ask it early rather than a substitute for the answer.