Transfer of Undertakings Protection of Employment Regulations (TUPE) protects the entitlement of UK employees to the same terms and conditions of employment when a business is transferred from one owner to another. A transfer of an undertaking relates to two broad categories, either a business transfer or a service provision change, TUPE applies to a business if there is a transfer of an ‘economic entity’ that retains its identity. There are various questions that need to be asked to see if TUPE applies such as:

• Is the kind of business being conducted by the ‘transferee’ (the new owner, or the employer who is receiving staff) the same as the ‘transferor’ (the old owner, or the employer who is transferring staff)?
• Has a transfer of tangible assets such as building and moveable property taken place?
• Are any intangible assets transferred at the time of the transfer, such as trademarks, copyright or patents?
• Have the majority of employees been transferred?
• Have clients or customers been transferred?
• Is there a high degree of similarity between the activities carried on before and after the transfer?

If the answer to the above questions is yes, then TUPE is likely to apply, it may even be that only one of these factors being true is enough for TUPE to apply in certain situations. Some examples of where TUPE has applied previously are mergers, a change of license or franchise, changing contractors, contracting out of services, sales of businesses by sale of assets, transfers out of companies in administration, a business being gifted through a will and situations where a sole trader’s business or partnership is wholly or partially sold or transferred.

The Government and ACAS websites both have accurate, further information and guidance on complying with the law which is available for employers, employees and their representatives. It is essential that TUPE is managed correctly and fairly in all situations, and you should seek professional advice if you think TUPE may apply to you, to avoid potential fines.