Thanks. Whilst there are situations when your employment may transfer automatically to a new employer, but for this to happen certain conditions must be met.
The Transfer of Undertakings (Protection of Employment) Regulations 2006 (better known as TUPE) is a piece of legislation which exists to protect employees' rights if their employment transfers from one employer to another. This could be because of a sale of the business, or because a new company takes over the services provided by their current employer. Examples of TUPE ‘transfers’ include:
- Simple sale of a business where one business takes over another (except if it is done by selling the company’s shares). The nature of the business must remain sufficiently similar after the transfer
- Contracting out of a specific service, where the employer engages a contractor to carry out specific activities they had previously carried out themselves (the opposite, contracting in, would also be covered)
- Change of contractors - where certain services move across from one contractor to another, so the employer changes who they use to provide a specific service
Assuming one of the above applies, then in order to be protected, the first requirement is that the person needs to be an employee, which means contractors, casual 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 business or services which are 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:
- The percentage of time spent working in the business being transferred
- The amount of value given to each part by the employer
- 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.
If there was no sale of business or transfer of services then you will not have to transfer and the employer cannot just say you have a new employer in order to try and avoid having to make you redundant. In that case you can consider taking this to an employment tribunal to challenge them.
Does this answer your query?