TUPE
Our Employment team is experienced in providing advice on the applicability of TUPE, including its impact on employment relationships, effects of a transfer of employment and employee consultation obligations.
We are regularly instructed on TUPE issues arising from acquisitions, insolvency scenarios and changes in service provision.
Alongside advising on the application of TUPE, we have extensive experience supporting clients through the employment aspects of due diligence, identifying key risks and liabilities at an early stage.
We also advise on the employee related protections to be incorporated into transaction and acquisition documents, supporting clients to identify and manage employment risk with confidence, allocate liabilities appropriately between parties, and facilitate a smooth transition that complies fully with TUPE
Advising on the application of TUPE
We advise clients on whether TUPE applies to a particular transaction or change in circumstances, including business sales, outsourcing, insourcing and changes in service providers.
Our advice involves a detailed factual and legal assessment of the activities before and after the change, whether there is an organised grouping of employees, and whether there is a transfer of an economic entity that retains its identity or a qualifying service provision change. We also advise on grey area scenarios and TUPE risks where application is uncertain.
Our advice covers the consequences of TUPE applying (or not), including the automatic transfer of employees, continuity of employment, liabilities, and restrictions on dismissals and changes to terms and conditions, enabling clients to take informed, risk managed decisions at an early stage.
TUPE transactions and consultation
We advise clients on all employment aspects of TUPE in the context of corporate and asset transactions. This includes assessing whether TUPE applies, identifying the transferring employees, and advising on the scope of rights, liabilities and obligations that will transfer, including what happens to those employees who are employed via a sponsorship license.
We support clients through the information and consultation requirements, employee liability information (“ELI”), and the management of employee communications. We also advise on measures, proposed changes to terms, and the risks around dismissal or restructuring connected with the transfer.
As part of the transaction, we assist with employment due diligence, advise on allocation of risk, and draft and negotiate appropriate TUPE warranties, indemnities and contractual protections. Our advice is practical and commercially focused, helping clients to manage TUPE risk and ensure a smooth and lawful transfer.
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Frequently Asked Questions
Find answers to your most pressing questions about our services and processes.
When does TUPE apply?
TUPE generally applies in two main situations:
- Business Transfers: When there is a transfer of an economic entity, or
- Service Provision Changes: When a client changes service providers or brings services in-house, and the activities remain essentially the same.
What does TUPE mean for employers?
TUPE protects employees when a business (or part of it) transfers to a new employer. Employees’ contracts, terms and conditions, and continuity of employment transfer automatically to the new employer, who must honour those arrangements.
Employers involved in a TUPE transfer must also inform and, where required, consult with appropriate employee representatives. They must provide prescribed information about the transfer and take steps to ensure employees’ rights are preserved throughout the process. Because TUPE is technical and the consequences of non‑compliance can be significant, it is advisable for employers to seek legal advice when a potential TUPE situation arises.
What are the consequences for breaching TUPE?
Breaching TUPE can lead to significant employment tribunal claims. A failure to inform and consult affected employees (or their representatives) can result in a protective award of up to 13 weeks’ gross pay per employee.
In addition, any dismissal where the sole or principal reason is the TUPE transfer itself will be automatically unfair, unless the employer can rely on an economic, technical or organisational (ETO) reason entailing changes in the workforce.