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Our approach to Breach of TUPE regulations claims

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breach of TUPE regulations frequently asked questions

Below is a list of the common protections outlined for employees under TUPE regulations:
  • Holiday entitlements
  • The transfer of any open cases/claims against the company
  • Pensions, although the new owner would be under no obligation to continue using the same company
  • Retention of original contractual terms and conditions
  • Retention of current length of service
  • If a redundancy occurs solely due to the transfer, employees’ rights to claim unfair dismissal would be protected
  • The right for consultations with HR and other employment professionals before the transfer takes place.
The short answer is indefinitely. However, if the terms and conditions of an employee’s contract are changed due to the business transfer, even after several years, the validity of TUPE protection would be restricted. This would only be applicable if the contractual changes were permitted, which we explain a little more below. It’s important to seek legal advice in relation to this, to make sure you know the final details of your protection. Call us now on 0808 164 0808.
Usually, if a new employer decides to make contractual changes, this would be classed as a breach of TUPE regulations. The employer would need to prove that the changes are not a direct result of the business transfer. But, there are scenarios in which contractual changes can be made. Such as, the changes being permitted as part of the contract itself, or due to external factors such as company structure issues, technological issues involving equipment and affecting day-to-day business, or economic influence on company performance. It’s important to seek legal advice in this instance.
As we mentioned above, TUPE regulations would not apply if an external service provider’s contract was:
  • Re-tendered
  • Outsourced
  • Insourced
  • Transferred
For example, a caterer or cleaner who is employed by a business on a contractual basis wouldn’t be protected by TUPE if that business didn’t renew the contract and sought the service elsewhere. There are also scenarios with public sector organisations changing hands but remaining in the public sector, which wouldn’t be protected by TUPE law. The question of TUPE regulations not applying or applying can be confusing, and if you’re in a transactional situation where you’re unsure, it’s always best to seek the advice of legal experts.
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