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What is a TUPE transfer?

A TUPE transfer is a situation where employees’ employment transfers from one employer to another under the Transfer of Undertakings (Protection of Employment) Regulations. A TUPE transfer happens when a business or service changes hands in a way that meets the conditions set out in the regulations. Where TUPE applies, employees who are assigned to the transferring business or service automatically transfer to the new employer.

Types of TUPE transfer

There are two main types of TUPE transfer.

Business transfers

A business transfer occurs when a business, or part of a business, is sold or transferred to another organisation.

This can include:

  • the sale of a whole business
  • the sale of part of a business
  • mergers where one organisation takes over another

For a business transfer to be covered by TUPE, there needs to be more than a simple change of ownership. Something, other than employees, actually needs to transfer from one legal entity to another.

Service provision changes

A service provision change occurs when responsibility for a service moves from one organisation to another.

This can happen where a service is:

  • outsourced to a contractor
  • transferred from one contractor to another
  • brought back in-house by the customer

In service provision changes, TUPE may apply where there is an organised grouping of employees whose principal purpose is carrying out the relevant service.

Which employees transfer under TUPE?

Only employees who are assigned to the transferring business or service transfer under TUPE.

Whether an employee is assigned depends on the specific facts, including:

  • the work they carry out
  • how their role is organised
  • how much time they spend on the transferring activity

This assessment is fact-specific and can vary from case to case.

What happens to employees in a TUPE transfer?

Where a TUPE transfer applies:

  • employees transfer automatically to the new employer
  • their continuity of employment is preserved
  • their existing terms and conditions transfer with them

The new employer becomes responsible for those employees from the point of transfer.

When a TUPE transfer may not apply

Not every change of business or service results in a TUPE transfer.

TUPE may not apply where, for example:

  • the activity does not transfer as an identifiable service
  • the business does not retain its identity
  • there is no organised grouping of employees assigned to the work

Whether TUPE applies depends on the circumstances of the transfer.

How a TUPE transfer fits within TUPE regulations

A TUPE transfer is the mechanism by which TUPE protections are triggered. Once a qualifying transfer takes place, the protections set out in TUPE apply to the affected employees.

You may also want to read:

  • What does TUPE mean?
  • What happens to employees’ terms and conditions under TUPE?
  • How long does TUPE protection last?
  • What pension rights transfer under TUPE?

Support with TUPE transfers

If you are involved in a potential transfer and need support understanding whether TUPE applies, specialist HR advice can help assess the situation and manage the process correctly.