TUPE Employee Rights: What Transfers and What Doesn't

TUPE provides strong protection for employees when businesses change hands. Understanding your rights helps you know what to expect and challenge any breaches.

Core TUPE Rights

Automatic Transfer

Your employment automatically transfers to new employer:

• On the transfer date
• Without needing your agreement
• On existing terms and conditions
• With all rights preserved

No Dismissal for Transfer

Cannot be dismissed:

• Simply because of the transfer
• To make business more attractive
• Because new employer prefers different staff
• Unless there's an ETO reason (see TUPE dismissals guidance)

What Transfers to New Employer

All Contractual Terms

Everything in your contract transfers:

What Transfers	Examples
Pay	Salary, bonuses, commission structures
Hours	Working time, shift patterns, overtime
Holiday	Entitlement, accrued but not taken
Benefits	Car allowance, private medical, gym membership
Location	Place of work (unless mobility clause)
Job title and duties	Role and responsibilities
Notice periods	Contractual notice required
Restrictive covenants	Non-compete clauses, etc.

Continuous Employment

Your employment continuity is preserved:

• Start date stays the same
• All service counts
• For redundancy calculations
• For unfair dismissal qualifying period
• For enhanced rights (longer service)
• For notice entitlements

Example: Started with Company A on 1 January 2020. Transfer to Company B on 1 July 2024. Your continuous employment date remains 1 January 2020, giving you 4.5 years' service on transfer date.

Collective Agreements

If covered by collective agreement:

• Terms continue to apply
• Until varied, terminated, or replaced
• New employer bound by them
• Union recognition may transfer

Accrued Rights

Transfer includes:

• Holiday you've earned but not taken
• Unpaid wages or bonuses
• Outstanding expense claims
• Accrued time off in lieu
• Any money owed to you

Pension Rights

Occupational Pensions

Special rules apply:

• Occupational pension schemes don't transfer under TUPE
• But if old employer contributed, new employer must provide:
  • Minimum level of pension provision
  • Or match contributions up to 6% of salary
  • Into defined contribution scheme

Personal Pensions

If employer contributed to personal pension:

• Obligation transfers
• New employer must continue contributions
• At same rate

State Pension

Not affected:

• Continues as normal
• Both employments count
• National Insurance contributions continue

What Doesn't Transfer

Exceptions

Some things don't automatically transfer:

• Criminal liabilities - don't pass to new employer
• Occupational pension schemes - special rules instead
• Some share schemes - particularly if company-specific
• Personal performance awards - from old employer's discretion
• Ex gratia payments - that were discretionary

But Be Careful

Many things employers claim don't transfer actually do:

• Discretionary bonuses - if part of custom and practice
• Benefits in kind - if contractual
• Enhanced terms - if in contract or custom
• Company perks - if contractual entitlement

Protection from Changes

Changes Void If Connected to Transfer

Cannot be changed if change is because of transfer:

• Even if you agree
• Even if better than before
• Even if whole workforce agrees
• Void means unenforceable

Test

Change void if:

• Sole or principal reason is transfer, OR
• Connected to transfer, AND
• No ETO reason entailing workforce changes

Examples

Change	Connected to Transfer?
Cut pay to match new employer's rates	Yes - void
Remove company car benefit	Yes - void
Change hours to fit new structure	Likely yes - void
Bonus removed because of transfer	Yes - void

When Terms Can Change

After Transfer

Changes permitted if:

1. Completely unconnected to transfer

   • Genuine business reason arising later
   • Would have happened anyway
   • No link to transfer

2. ETO reason exists

   • Economic, technical, or organizational
   • Entailing changes in workforce
   • Fair process followed

3. Genuinely agreed

   • After transfer
   • For reasons unconnected to transfer
   • Proper consideration
   • No pressure related to transfer

Right to Information

Before Transfer

Entitled to know:

• That transfer is happening
• When it will occur
• Reasons for transfer
• Legal implications for you
• Economic and social implications
• Any measures new employer plans
• Identity of new employer

Through Representatives

Information given via:

• Trade union representatives (if recognized)
• Elected employee representatives
• Individual consultation if appropriate

Employee Liability Information

New employer gets information about you:

• Identity and age
• Your terms and conditions
• Disciplinary and grievance matters (last 2 years)
• Court or tribunal claims
• Collective agreements covering you

You have right to know what's been disclosed.

Continuous Employment Benefits

Why It Matters

Longer service gives you:

Right	Service Needed
Unfair dismissal	2 years (usually)
Redundancy pay	2 years
Enhanced redundancy	More service = more pay
Notice periods	Increase with service
Some contract benefits	May improve with service

Preserved Through TUPE

Your clock doesn't reset:

• Service with old employer counts
• Plus any service with new employer
• Continuous throughout
• For all statutory and contractual purposes

Right to Object to Transfer

You Can Refuse

You're not forced to transfer:

• Can object before or on transfer
• Employment ends on transfer date
• Not treated as dismissal
• Not treated as resignation

Consequences of Objecting

If you object:

• Employment terminates
• No redundancy pay (unless independently entitled)
• No unfair dismissal claim for transfer itself
• May claim if dismissed before objection
• May claim constructive dismissal if substantial change

When to Consider Objecting

Think carefully - only if:

• New employer has very poor reputation
• Ethical or moral objections
• Fundamental change to role
• Cannot work for new employer for personal reasons
• Have definite alternative employment

How to Object

• Inform employer before transfer
• Put it in writing
• Be clear about objection
• Understand consequences
• Cannot object then claim unfair dismissal for transfer

Protection From Dismissal

Automatically Unfair

Dismissal is automatically unfair if:

• Sole or principal reason is the transfer
• Or connected to transfer
• No service requirement
• Uncapped compensation

Exception - ETO Reasons

Dismissal may be fair if:

• Economic, technical, or organizational reason
• Entailing changes in workforce
• Fair process followed
• Genuine redundancy or restructure

See TUPE dismissals guidance for detail.

If Terms Are Worsened

Breach of Contract

If new employer worsens terms:

• Changes may be void
• Can claim breach of contract
• May claim unlawful deduction (pay)
• May be constructive dismissal
• Can claim in tribunal

Constructive Dismissal

If substantial detrimental change:

• May resign and claim
• Must be fundamental breach
• Must not have affirmed breach
• 2 years' service usually needed (not for TUPE discrimination)

Redundancy After Transfer

Can Still Be Made Redundant

TUPE doesn't prevent genuine redundancy:

• If role genuinely redundant
• Must be real redundancy situation
• Cannot be disguised transfer dismissal
• Fair process required
• Redundancy pay due

Redundancy Pay Calculation

Based on continuous service:

• Including pre-transfer service
• At post-transfer salary
• Statutory or contractual (whichever better)

Discrimination Protection

Cannot Discriminate

Transfer cannot be used to discriminate:

• Cannot select older workers for redundancy
• Cannot target protected characteristics
• Selection must be fair
• Discrimination claims can be brought

What To Do If Rights Breached

Options

If new employer breaches your rights:

1. Raise grievance - with new employer
2. Seek ACAS advice - free conciliation
3. Claim in tribunal - for breach of contract, unfair dismissal, etc.
4. Resign and claim - constructive dismissal if serious breach

Time Limits

• 3 months less 1 day from breach
• ACAS early conciliation first
• Don't delay seeking advice

Practical Tips

Before Transfer

• Check what you're currently entitled to
• Get copies of all documentation
• Note what benefits you receive
• Clarify any ambiguous terms
• Join union if available

During Transfer

• Attend consultation meetings
• Ask questions
• Raise concerns
• Note what's promised
• Keep all communications

After Transfer

• Check first payslip carefully
• Confirm benefits continued
• Raise any issues immediately
• Don't assume changes are valid
• Get advice if terms change

Summary

Your Core Rights

• Transfer automatically on same terms
• Continuous service preserved
• Cannot be dismissed for transfer
• Terms cannot worsen because of transfer
• Entitled to information
• Right to object (but consequences)

What Transfers

• All contractual terms
• Pay, hours, holiday, benefits
• Continuous employment
• Accrued rights
• Collective agreements
• Most pension contributions

What's Protected

• Terms cannot worsen due to transfer
• Dismissal for transfer automatically unfair
• Service continuity preserved
• Consultation required
• Information rights

Key Points

• Strong employee protection
• New employer inherits all obligations
• Terms locked in (initially)
• Right to object but loses rights
• Can still be fairly dismissed for other reasons
• Redundancy possible if genuine

TUPE gives employees significant protection during business transfers. Know your rights, understand what transfers, and challenge any attempts to worsen your position because of the transfer.