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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Are there any grounds under which an employer can refuse to

Resolved Question:

Are there any grounds under which an employer can refuse to tupe over a member of staff
Submitted: 10 months ago.
Category: Law
Expert:  Ben Jones replied 10 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. Can you please explain your situation in some more detail?

Customer: replied 10 months ago.
I would like to know the circumstances under which you can refuse to type a member of staff
Customer: replied 10 months ago.
circumstances in which an employer can refuse to tupe a staff member
Expert:  Ben Jones replied 10 months ago.

ok, are you the employee or the employer? Are there any particular circumstances that come to mind which prompted you to ask about this?

Customer: replied 10 months ago.
Employer with adverse information on a staff member to be taken over
Expert:  Ben Jones replied 10 months ago.

what adverse information?

Customer: replied 10 months ago.
can I please simply be advised on circumstances in which an employer can refuse to tupe an individual,more details are confidential
Expert:  Ben Jones replied 10 months ago.

Ok if you just need a general response, then there are no circumstances under which an employer can refuse to TUPE over a member of staff. TUE is not a choice – it is an automatic thing that happens if the requirements for a TUPE protection are satisfied. So as long as the employee in question matched the criteria for being protected under TUPE, they would automatically transfer to the new employer. The current employer has no choice over this matter. The employee can decide to opt out of the transfer and not be transferred but that would amount to a resignation on their part. So to answer your query, the employer does not decide whether someone transfers or not – the law does and if the legal criteria to be protected under TUPE apply then that happens automatically and they transfer automatically.

This is your basic legal position. I have more detailed advice for you in terms of the criteria which determine whether someone is protected under TUPE, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Expert:  Ben Jones replied 10 months ago.

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a second to leave a positive rating by selecting 3, 4 or 5 starts from the top of the page. The question will not close and I can continue with my advice as discussed. Thank you

Ben Jones and 3 other Law Specialists are ready to help you
Expert:  Ben Jones replied 10 months ago.

Thanks. TUPE is a piece of legislation which exists to protect employees' rights if their employment changes hands. This could be because of a sale of the business, or because a new contractor takes over the services provided by their current employer. Examples include:

· Simple sale of a business where the owner changes (excludes a share sale of the business)

· Contracting out of a specific service, where the employer engages a contractor to carry out specific activities they have carried out up to now (the opposite, contracting in, would also be covered)

· Change of contractors - where the services move across from one contractor to another

In order to be protected, the first requirement is that the person needs to be an employee, which means self employed workers or agency staff will not be covered. They will then only be protected if they are permanently employed in the business (or part of it) that is being transferred.

Next, one has to determine if the person is ‘assigned’ to the organised grouping of employees transferring. As there is no definition of what ‘assigned’ means, whether the employee is assigned is essentially a factual question and needs to be determined by taking into account different factors, such as:

{C}· The percentage of time spent working in the business being transferred

{C}· The amount of value given to each part by the employer

{C}· The job description and what the employee is contractually required to do

Finally, the business or service that transfers has to continue with the new employer. Therefore, any activities that are currently carried out must continue with the new employer after the transfer. If the business or services changes significantly after the transfer then TUPE protection would not apply. In the case of service changes the service has to be fundamentally and essentially the same before and after the transfer for TUPE to apply.