When TUPE regulations apply
Your rights are protected under TUPE if both of these things apply:
- you’re legally classed as an employee
- the part of the organisation that’s transferring is in the UK
TUPE regulations can apply to both the public and private sectors.
Public sector transfers
TUPE applies to public sector transfers if the transfer is from the public sector into the private sector or from one public authority to another. For example, from the NHS to a local authority.
TUPE does not apply to transfers within the public sector where the employer does not change. For example, transfers within the Civil Service. But you will still get similar protections.
Types of transfer protected under TUPE
The 2 types of transfer protected under TUPE are:
- business transfers
- service provision changes
This is where a business or part of a business moves from one employer to another. This can include mergers where 2 businesses come together to form a new one. It’s possible for the business, or part of it, to have just one employee.
Your employer must change for you to be protected under TUPE.
You will automatically transfer to your new employer when the transfer happens.
Service provision changes
This is where contracts are taken over. This can be because:
- a service provided in-house is taken over by a contractor (known as ‘outsourcing’)
- a contract ends and the work is transferred in-house (known as ‘insourcing’)
- a contract ends and is taken over by a new contractor (known as ‘retendering’)
Service provision changes often include contracts to provide labour-intensive services such as:
- office cleaning
- rubbish collection
- machinery maintenance
You are not protected under TUPE if the contract is for:
- the supply of goods only, for example a pub changing food suppliers
- a single event or short-term task, for example a conference or an exhibition
To transfer under TUPE, you must be part of an ‘organised grouping of employees’. This is the group of employees carrying out work for the ‘client’ (the organisation receiving the services). The organised grouping of employees may just have one employee.
If only part of your job is being transferred, whether TUPE applies will depend on whether you’re part of an organised grouping of employees that meets the client’s needs.
The client must remain the same for TUPE to apply. For example, if the work you do has been outsourced to a contractor but you still provide the service for the same client.
An organisation called WorkCo has contracted out the reception and security of their office to SecurityCo. When the contract ends, they retender the contract to SafeCo. WorkCo is the client as they are receiving the services. The reception and security staff are part of an organised grouping of employees, providing services to WorkCo. They’ll transfer to SafeCo under TUPE. TUPE applies because the client WorkCo remains the same.
You should talk with your employer to find out if you’re transferring under TUPE. If you and your employer do not agree whether you are in the organised grouping, you might want to get legal advice.
TUPE could still apply if:
- you work abroad but your employer is based in the UK
- the purpose of the transfer is to move your organisation, or part of it, abroad – however this could also be a redundancy situation
This can be a complex area. To check how TUPE applies to your situation, you might want to get legal advice.
Getting help and advice
You should talk to your employer or trade union representative if you’re not sure whether you’re transferring.
To talk through your situation, you can call the Acas helpline.
If you’re still not sure if TUPE applies, you might want to get legal advice.