"you have been fantastic"
TUPE does not apply to every case where ownership of a business, or undertaking (or part of it) changes hands. The protection of TUPE will only extend to a ‘relevant transfer’. A relevant transfer can be a ‘business transfer’ or a ‘service provision change’.
Use this checklist to consider if a transfer is a relevant transfer and if you will benefit from the protections of TUPE.
Understanding what is a 'business transfer'
A ‘business transfer’ takes place if a business or undertaking or part of it (which is an economic entity) changes hands and retains its identity. The business or undertaking must also be situated in the UK before the transfer takes place.
Thus for a business transfer there must be:
- an economic entity;
- that transfers; and
- which retains its identity.
In many cases there will be little doubt that a TUPE related business transfer will exist.
Business transfer examples
For example, the sale of a convenience store owned by Mr A to Company B, provided it continues to be operated as a convenience store by Company B, will be a business transfer.
Likewise if Mr A’s store also had a separate area dedicated to providing dry clearing services and Mr A sells this part of his business including any stock, outstanding customer orders and customer details this will also be a business transfer of part of a business.
The situation may well be different if however Mr A sells his store and it becomes a flower shop or say a restaurant after the sale. Here it is likely that the convenience store has not retained its original identity and there would be no business transfer and the employees employed by the Mr A would all be at risk of being dismissed for redundancy and would probably have no claims of unfair dismissal to bring.
Understanding what is a 'service provision change'
Service provision changes are a feature now of most out sourcing contracts, for example a contract to clean a school. The relevant TUPE regulations are not easy and considerable case law has tried to clarify when and how a service provision change will take place.
A service provision change applies to an initial (or ‘first generation’) outsourcing, a subsequent (or ‘second generation’) outsourcing or an in-sourcing of a contract. It does not apply to the supply of goods or a ‘one-off’ contract, say, to install a piece of computer software.
In simple terms, there will be a ‘service provision change’ when contractor A is engaged to do work on behalf of a client, who later engages a new contractor B to carry out the same work, or when the client brings the work in-house. In all three events the employees who are employed to do the work will have their contracts of employment automatically transfer to contractor B or to the client, if the work is brought in-house.
Service provision change examples
So, taking the school cleaning example: the school has decided to change its cleaning contractor to a new contractor because the school is unhappy about the standards of cleaning being done. When the contract and work is taken on by the new contractor the existing cleaning staff automatically transfers to the new contractor’s employment on the same rate of pay and on the same terms and conditions of employment. This means of course the school still has the same staff doing the cleaning but the new contractor will no doubt be expected to exercise greater supervision over them to improve the standard of cleaning!
A service provision change can apply to one or more employees working on the contract but they and the work must be situated in Great Britain. Generally speaking, for there to be a service provision change, there must be a group of employees who mainly or solely work on the contract that is transferred. Again, there can be difficulties if the contract is split between one or more contractors.
Get advice if in doubt
Deciding if there has been a relevant transfer can be complicated. It is also worth remembering that employment tribunals must interpret the provisions of TUPE with a view to protecting employees and their employment. There have been, however, some very unusual decisions so you would be well advised to take legal advice from the TUPE experts at Quantrills if you are facing a TUPE related problem.
Reasons to Choose
Expert help from Solicitors
Jargon Free Advice
Convenient Easy Access
Best Client Care
Becoming our client is a straightforward process. However, before choosing Quantrills as your employment law solicitors you and us will want to be completely sure we are the right people to help you achieve your objectives. Having looked at our web site, if you like our approach and would like to discuss how we can help you, getting started is easy.
At Quantrills we are flexible in how we work with you and how we progress your case...
We welcome calls from our clients. Call us any time between 08.30AM to 5.30PM Monday to Friday to discuss your case. We will do our best to speak with you when you call, or if we can’t, you will get a call back as soon as possible.
01473 688 100Or request a call back
If it’s more convenient for you do come and see us. We do an excellent coffee. Whilst many of our clients don’t visit us, our offices are easy to find being just off junction 56 on the A14. Client meetings are by appointment and there is free car parking in front of our reception.Get Directions
We love emails; they help save time and avoid delays. Our case management system is set up to make the best use of them.Email us
Our web forms make it easy to give us the information we need from you. Our forms have a clever "save and return" feature so you can complete the form in more than one visit.View Forms
Latest Employee Knowledge Bank Articles
Use our knowledge bank of employee focused briefing notes, checklists and case reports to obtain trusted and accurate information about key employment law and HR topics to help you learn more about your employment law rights.View more