Employment law – TUPE
Provides for automatic statutory novation of employment contracts
Protects employees from unilateral changes of contractual terms and U/D
Governed by Transfer of Undertakings (Protection of Employment) Regulations 2006
Step 1: Who does TUPE apply to?
A person:
a) Employed immediately before a relevant transfer; or
b) Who would have been employed immediately before a relevant transfer had they not been dismissed for the
sole or principal reason of the transfer – Regulation 4(3)
Step 2: When will TUPE apply?
When a relevant transfer occurs – Regulation 3
Must be a change of employer. TUPE does not apply when the shares of a company are sold, because the
entity employing the employees does not change
Two types of relevant transfer:
1) Transfer of a business, undertaking or part of it; and
2) A service provision change
Transfer of a business, undertaking or part of – Reg 3(1)(a)
Will amount to a relevant transfer if:
There is a transfer of an economic entity which retains its identity
o Economic entity Reg 3(2) – “an organised grouping of resources which has the objective of pursuing an
economic activity” i.e. is there a set of resources that you can identify as being the same before and
after the transfer takes place?
When deciding whether Reg 3(1)(a) is satisfied, the cumulative effect of a number of factors should be considered –
Spijkers Gebroeders v Benedik Abattoir CV
Similarity in activities carried out by the entity before and after transfer
Whether there is any interruption between those activities
Whether any tangible assets are transferred
The value of intangible assets at the time of the transfer
Whether any existing customers have been transferred
Whether any existing employees have been transferred
Service provision change – Reg 3(b)(i-iii)
Will amount to a relevant transfer if:
Reg 3(2A) - Activities which are fundamentally the same as those carried out by a client who ceases to carry
them out are either:
o Outsourced
o Re-tendered
o Insourced
Provides for automatic statutory novation of employment contracts
Protects employees from unilateral changes of contractual terms and U/D
Governed by Transfer of Undertakings (Protection of Employment) Regulations 2006
Step 1: Who does TUPE apply to?
A person:
a) Employed immediately before a relevant transfer; or
b) Who would have been employed immediately before a relevant transfer had they not been dismissed for the
sole or principal reason of the transfer – Regulation 4(3)
Step 2: When will TUPE apply?
When a relevant transfer occurs – Regulation 3
Must be a change of employer. TUPE does not apply when the shares of a company are sold, because the
entity employing the employees does not change
Two types of relevant transfer:
1) Transfer of a business, undertaking or part of it; and
2) A service provision change
Transfer of a business, undertaking or part of – Reg 3(1)(a)
Will amount to a relevant transfer if:
There is a transfer of an economic entity which retains its identity
o Economic entity Reg 3(2) – “an organised grouping of resources which has the objective of pursuing an
economic activity” i.e. is there a set of resources that you can identify as being the same before and
after the transfer takes place?
When deciding whether Reg 3(1)(a) is satisfied, the cumulative effect of a number of factors should be considered –
Spijkers Gebroeders v Benedik Abattoir CV
Similarity in activities carried out by the entity before and after transfer
Whether there is any interruption between those activities
Whether any tangible assets are transferred
The value of intangible assets at the time of the transfer
Whether any existing customers have been transferred
Whether any existing employees have been transferred
Service provision change – Reg 3(b)(i-iii)
Will amount to a relevant transfer if:
Reg 3(2A) - Activities which are fundamentally the same as those carried out by a client who ceases to carry
them out are either:
o Outsourced
o Re-tendered
o Insourced
