TUPE (Transfer of Undertakings (Protection of Employment) Regulations 2006) protects employees' rights when a business or undertaking is transferred from one owner to another. It transfers employment contracts automatically as if the new employer assumes the responsibilities of the old employer. TUPE applies in two situations: the transfer of an economic entity that retains its identity, and a service provision change. It ensures continuity of employment and prevents dismissal due to a transfer. Employers must consult with trade unions and provide employee information before a transfer.

1. UNDERSTANDING TUPE AND
HOW IT AFFECTS EDUCATION
Mary Siddall, Springhouse Solicitors

2. How TUPE Works
• TUPE = Transfer of Undertakings (Protection
of Employment) Regulations 2006

3. What Does TUPE Do?
• Transfers the contracts of employment from
the ‘transferor’ to the ‘transferee’ as if the
new employer steps into the shoes of the old
one and inherits all their responsibilities

4. How TUPE Works
• It will protect employment rights in 2
situations:
– Transfer of an economic entity that retains its
identity
– Service provision change
Derives from EU legislation

5. Transfer of an Economic Entity
• Transfer of an ‘undertaking’ or part of an
undertaking
• ‘Economic entity means an organised
grouping of resources which has the objective
of pursuing an economic activity, whether or
not that activity is central or ancillary’

6. • ‘Public and private undertakings engaged
in economic activities whether or not they
are operating for gain’

7. Examples of transfer of economic
entity
• Sale of business as going concern
• Lease which takes with it the right to carry on
a business
• Transfer of programme or course to another
educational establishment
• Spin out of economic activity from HEI to a
new company

8. Points to Note
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•
•
•
Does not apply to a sale of shares
No need for agreement between parties
Can be a series of transactions
Can apply where no transfer of assets at all

9. Case Study 1
• Wessex University offers undergraduate and
masters programmes in babylonian studies.
The University wants to close the programme,
but the University of Castlebridge has
expressed an interest in taking over the course
and offering it to students

10. Service Provision Change
• This applies where:
– There is an ‘organised grouping of
employees…which has as its purpose the carrying
out of activities concerned on behalf of the client;
and
– The client intends that the activities will, following
the service provision change, be carried out by the
‘transferee’

11. Service Provision Change
• Who is the transferee?
• First generation contractor on a tender
• Second generation contractor following retender (so TUPE operates between the first
and second generation contractors)
• The University/client if the work comes back
in-house

12. Examples of Service Provision Change
• College contracts out a service
• Schol appoints a new contractor following a
re-tender
• Transfer of research funding? Research team
vs sole researcher?
• University is commissioned by government
department to provide a service

13. Case Study 2
• For years, the University of Sotonia has
purchased its supply of biscuits from a local
company, Short Bread and Co. This company
employs a team of staff dedicated to
producing the dolphin-shaped biscuits.
Following a rebranding exercise, the University
decides to tender out its biscuit purchasing
requirements and the contract is awarded to
Jammy Dodger Limited

14. Case Study 3
• A PI at Imperial obtains funding for a 3 year
research project and engages 2 research
assistants. A year into the contract, the PI
decides to move to Dundee and take the
funding and project with him. Imperial argue
that Dundee have to take the two RA’s as well
under TUPE

15. Effects of TUPE
• On transfer, all rights and obligations of
employees transfer to the transferee
• On the same terms and conditions
• Continuity of employment is transferred along
with accrued service rights
• A dismissal connected to the transfer is
automatically unfair

16. Points to Note
• Transferee may be able to dismiss staff if it has
an ‘economic technical or organisational
reason’ e.g. redundancy
• Transferee cannot vary or harmonise terms
and conditions of staff who come across save
for an ETO reason
• Note recent CJEU confirmation of the ‘static’
interpretation of collective agreements as
opposed to dynamic

17. Can an Employee Prevent Themselves
From Being Transferred Under TUPE?
• Employee has right to object to transfer but will
be treated as having resigned
• Employee may also have a claim if the transfer
would involve a ‘substantial change in working
conditions to [his] material detriment’
• Ordinary constructive dismisssal rights also apply

18. TUPE Dismissals
• Effect of TUPE is that no dismissal takes place
–so for example, employee is not entitled to
redundancy payment from old employer
• Pre-transfer dismissals are likely to become
the responsibility of the transferee
• Transferee may be able to dismiss for an ETO
reason but must act fairly NB note the
‘enlarged pool’ for redundancy

19. Information and Consultation
• Recognised Trade Unions [or employee
representatives if none] must be given
information about the proposed transfer, the
reasons for it, the date of transfer and other
information
• There must be consultation with Trade Unions
where the transferee envisages changes to the
employee’s role post-transfer e.g.
redundancies, reorganisation or relocation

20. Employee Liability Information
• At least 14 days before transfer, the transferor
must supply information about:
– Identity and age of employee
– Terms of employment
– Disciplinary actions and grievances
– Claims or potential claims

21. Claims For Failure to Consult/Provide
Information
• Up to 13 weeks pay per employee for failure
to inform and consult
• At least £500 for failure to supply employee
liability information

22. Practical Points
• Tender documentation needs to deal with
possible TUPE implications; both in relation to
first generation contract (where contractor
may inherit staff) and second generation
(where you want to ensure that first
generation contractor will supply information

23. • When putting in a bid, consider whether TUPE
is a possibility – are there employees
elsewhere who are currently carrying on these
or similar activities?
• Make use of expertise available a ‘project
team’ may be needed

24. TUPE and Tendering
Contracts should have re-tendering provisions to
ensure existing providers present TUPE
information to the University in a timely
manner prior to the expiry of the contract.
Provide information on staff terms and
conditions to bidders, but bear in mind duty
of confidentiality under the Data Protection
Act 1998

25. TUPE Information
• full list of employees to be transferred age, gender, identities and job titles
• details of untaken leave and any carryforward arrangements
• remuneration, continuous service and
place of employment

26. • details of bonus schemes or other key
employee benefits
• employees who are away on sick leave,
maternity or paternity leave
• details of any outstanding claims or disputes
• details of recognised trade unions and
facilities arrangements