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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50209
Experience:  Qualified Solicitor
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we have 2 staff members that should be transferred under TUPE

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we have 2 staff members that should be transferred under TUPE law, we have lost the contract they worked on for 85% of their employment. We do not want to transfer them as we can continue to employ them on other work. Both staff want to stay with us.
Can we refuse to transfer the employees? whilst fully maintaining their employment status with us. Or must the employees refuse to transfer and resign from their employment and be re-employed by us under new contracts.
We do not want to issue new contracts as one of them has worked for us over 35 years.
What problems could we encounter from the incoming employer in respect of compensation for not transferring the 2 staff members.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Does the new employer insist on taking on these employees?

I have not asked them yet

Ben Jones : Ok thanks let me get my response ready please I will post on here early this afternoon thanks

thank you, Tina

Ben Jones :

There are a couple of ways in which you can get to keep the employees (or for them to stay with you if that is their preference). One is to show that TUPE did not actually apply to the specific circumstances and that the employees would not be covered by it. However that may be unlikely if such a big proportion of their work is being taken over by the new employer and you are looking at a rather complex and technical argument to find a way around that.

The other is for the employees to object to the transfer and opt out. This means that they are refusing to take up their rights under TUPE and do not wish to transfer to the new employer. It would then be deemed that their contract is terminated at the date of the transfer and they would not have to take u a job with the new employer. Usually, if the previous employer does not want to keep them on either then it means they would be left with no job but if you are happy to keep them on then you may offer them re-employment on their existing terms as soon as their contract ends (i.e. on the date of the transfer). As there was no dismissal, nor a break of a week or more, there would be no cessation of their continuous employment and they can remain working with you, keeping their continuous service and associated rights. But the key is to ensure that you have offered them their job back and they have started working for you again on the date they should have transferred to the new employer.

I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you


Excellent, many thanks.

Ben Jones :

you are welcome

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