TUPE

Under the Transfer of Undertakings (Protection of Employment) Regulations 2006 it is automatically unfair to terminate a contract of employment by reason of a TUPE transfer, unless the dismissal was for an economic, technical or organisational reason entailing changes to the workforce. The expression “changes to the workforce” usually means a reduction in the numbers of people employed in the undertaking. A claim can be brought when an employee has one complete years’ service as at the date of his/her dismissal. A claim may be brought against the original employer (the transferor) and/or the new employee (the transferee). If the dismissal is unfair then liability for a TUPE dismissal is likely to transfer from the transferor to the transferee.

If the dismissal was not for a TUPE related reason or TUPE does not apply then liability remains with the original employer. It is for this reason that most TUPE proceedings are often brought against both the transferor and the transferee.

If an employee’s TUPE related dismissal was for an economical, technical, or organisational reason which had entailed changed within the workforce, the dismissal may potentially be fair, but this would be tested under normal unfair dismissal rules.