TUPE Solicitors

TUPE transfers can create significant legal, operational and financial risks for employers, particularly during business sales, outsourcing projects, restructures and service provision changes. Early legal advice is often critical to protect business continuity, manage employee relations and reduce exposure to costly Employment Tribunal claims.

At Aaron & Partners, our specialist TUPE solicitors, led by Senior Partner and Head of Employment Law Helen Watson advise employers, business owners, HR teams and senior management on all aspects of TUPE and workforce transfers.

We support clients through business acquisitions, outsourcing and insourcing arrangements, contractor changes, restructures and redundancy processes, providing pragmatic legal advice tailored to commercial objectives.

Our Employment Law solicitors advise both transferors and transferees on:

• TUPE consultation obligations
• Employee liability information
• Redundancy and consultation obligations
• Changes to terms and conditions
• Protective award and unfair dismissal risks
• Transactional TUPE due diligence
• Managing employee disputes and objections

We act for SMEs, owner-managed businesses and larger organisations across a wide range of sectors, including manufacturing, logistics, healthcare, education and professional services.

If you are planning a transfer, outsourcing project or business transaction where TUPE may apply, obtaining specialist legal advice at an early stage can significantly reduce risk and help avoid disruption to your workforce and operations.

What is TUPE?

The Transfer of Undertakings (Protection of Employment) Regulations 2006, commonly known as TUPE, are designed to protect employees if the business they work for, or the services they are employed to carry out, changes hands.

In broad terms, when TUPE applies:

• Employees assigned to the transferring business or service transfer automatically transfer by operation of law to the new employer;
• Existing terms and conditions are usually protected;
• Continuity of employment is preserved; and
• Both the old and new employers can have legal duties before, during and after the transfer takes place.

TUPE creates substantial legal and financial risk if handled incorrectly. That is why employers often need specialist legal advice early in the process, before any announcements are made or decisions are taken.

When does TUPE apply?

Examples of situations where TUPE may apply include:

• A merger of two businesses
• Sale of the assets of a business as a going concern
• A change of licensee or franchisee
• Transfer of a company in administration
• Contracting out of some or all services
• Changing contractors
• Grant or take over a lease or licence of premises whilst operating the same business from those premises

TUPE does not apply automatically to every commercial change, and the test can be fact sensitive. If you’re unsure whether TUPE applies to your situation, early legal advice is crucial, as failure to comply can lead to costly tribunal claims, uncapped compensation or reputational damage.

There are two types of TUPE transfers:

1. Business transfers (when an organisation or part of it, is transferred from one employer to another); and
2. Service provision transfers (when a service is transferred to a new provider).

The part of the organisation that is transferring must be in the UK for TUPE to apply

What TUPE services do we provide?

Our Employment Law solicitors provide the full spectrum of TUPE related services, including:

• Clear, tailored advice on whether TUPE applies and to which employees
• Managing the TUPE information and consultation process
• Strategic advice on measures, restructures and potential redundancies
• Preparing and reviewing employee liability information
• Drafting letters, scripts and consultation documentation
• Specialist support on indemnities and warranties in transactional documents
• Defending and managing TUPE related risks and claims, including where employees object or are resistant to the TUPE transfer.

Who do we act for

Our specialist TUPE solicitors advise:

• Buyers and sellers in business transfers
• Transferors and transferees
• Outgoing and incoming service providers
• Employers outsourcing or insourcing services
• Directors and business owners
• HR teams and senior managers
• SMEs, owner-managed businesses and larger organisations

We provide pragmatic, commercial advice that protects employers while keeping transactions and services moving forward. We act on high-risk and time-critical TUPE matters, including those involving large workforces and sensitive employee relations, issues or potential claims.

What counts as a relevant transfer?

A relevant transfer occurs when a business, or part of it, changes ownership (business transfer) or when a service contract moves to a new provider or in-house (service provider change). TUPE will not apply automatically in every outsourcing or retendering scenario, and exclusions and exceptions can apply depending on how the services and workforce are organised.

TUPE also does not normally apply if the shares in a company are being sold to another company (in which cases typically employees will remain employed by the same employer before and after the sale).

Determining whether TUPE applies is often one of the most complex and disputed aspects of the process.

How does TUPE apply in outsourcing, insourcing and re-tendering situations?

TUPE often applies where services are outsourced, retendered or brought back in-house, provided there is an organised grouping of employees, and the activities remain fundamentally the same. Each case turns on its own facts, and early advice can prevent expensive disputes.

What are an employer’s duties before a TUPE transfer?

Where TUPE applies, employers must:

• Assess readiness for the transfer and whether the process is appropriately planned;
• Identify affected employees;
• Consider how to keep employees informed and whether you may need to request or provide due diligence information;
• Plan the transfer and consultation process;
• Inform appropriate representatives of the transfer and its implications;
• Consult where measures are proposed;
• Provide accurate employee liability information; and
• Comply with statutory timescales.

These obligations are mandatory. Failing to meet them can expose one or both employers to significant compensation claims.

Who is responsible for informing and consulting employees in a TUPE transfer?

Both the transferor and transferee have legal obligations. The outgoing employer is responsible for informing and consulting its affected employees, while the incoming employer must provide details of any proposed measures it intends to take.

What happens if an employer gets TUPE consultation wrong?

Failure to comply with TUPE obligations can result in costly Employment Tribunal Representation matters, including protective award and unfair dismissal claims.

What is a protective award, and how serious is that risk for employers?

A protective award can be up to 13 weeks’ pay per affected employee, with no statutory cap. Liability can be costly, particularly where large groups of employees are involved.

What employee liability information must be provided before a TUPE transfer?

Under TUPE, the old employer must provide the new employer with specific information in writing about the employees transferring. This is known as ‘Employee Liability Information’ (ELI) and includes:

• Employee identity and age
• Their terms and conditions of employment
• Information about any disciplinary action or grievance raised within the last two years
• Details of any Employment Tribunal claims made against the old employer within the last two years, or claims the employer reasonably believes may be brought
• Any collective agreements with a trade union applicable to the employees.

This information must be accurate, kept up to date, and provided at least 28 days before the transfer, unless a shorter period is agreed. But it is a good idea to provide this information as early as possible.

If any employees decide they do not want to transfer, the old employer must update ELI as soon as possible and tell the new employer.

Can employees be made redundant before or after a TUPE transfer?

Redundancies are not prohibited, but dismissals connected to TUPE are automatically  unless the employer can show a valid ETO reason and that a fair process has been followed.

Can terms and conditions be changed after a TUPE transfer?

Terms and conditions cannot normally be changed if the reason is connected to the transfer, unless an ETO reason applies and appropriate processes are followed. There are very limited exceptions, and employers should take legal advice before attempting to make any changes. This can apply even long after the transfer.

Employers should also review any existing Restrictive Covenants in Employment Contracts when senior employees transfer under TUPE.

What are the main TUPE risks for transferors and transferees?

Key risks include:

• Protective awards
• Unfair dismissal claims
• Inherited liabilities, perhaps related to absences, disciplinaries or grievances
• Contractual restrictions on post-transfer changes
• Employee relations issues and disruption

Our solicitors can identify, manage and reduce these risks before they escalate.

Our expertise in action: 

Our TUPE work includes:

• Advising a service provider on a complex retender involving the transfer of multiple employee groups
• Supporting a buyer through TUPE risks arising from an asset purchase
• Managing collective consultation and redundancy exercises following a TUPE transfer
• Advising an employer on whether TUPE applied to an insourcing arrangement
• Defending protective award and unfair dismissal claims linked to TUPE

Contact our TUPE solicitors

TUPE FAQs for employers 

Does TUPE apply to my business transfer or service provision change?

It depends on the structure of the transfer and the services involved, and legal advice is often required to assess this accurately.

Which employer is responsible for TUPE consultation?

The old employer must inform and consult its employees, with the new employer contributing details of proposed measures.

What is the risk if TUPE consultation is handled incorrectly?

Employers may face protective awards of up to 13 weeks uncapped pay per employee.

Can we make redundancies before or after a TUPE transfer?

Yes, but only where there is a genuine ETO reason and a fair process is followed.

When can an employer rely on an ETO reason?

Where the reason is economic, technical or organisational and involves a change to the workforce.

When will a TUPE-related dismissal be automatically unfair?

Where the dismissal is because of the transfer itself and not for a valid ETO reason.

Can we change employees’ terms and conditions after transfer?

Changes linked to the transfer are usually void unless strict conditions are met.

What information must be given to the incoming employer before transfer?

Employee identity, contractual terms, disciplinary and grievance history, claims and collective agreements.

Contact Our Employment Team