Employees who have been transferred under TUPE have, like all other employees, the right not to have their employment terminated unfairly (i.e. illegally). In the context of a TUPE transfer, this means that employees cannot have their employment terminated legally simply because they have been transferred.
However, this does not mean that transferred employees can never have their employment terminated. The law acknowledges that there may be circumstances when it is fair to do so. These circumstances may be economic, technical, or organisational. In employment law jargon - "ETO".
Subject to the actual circumstances prevailing at the time, this may mean that it is fair to terminate the employment of a transferred employee if, e.g.:
However, it will always be more difficult to convince an Employment Law Tribunal (which is where you will end up if you get it wrong) that an employee termination was un-connected with the transfer if it occurs near the time of the transfer. The converse is also true. The longer after the transfer the employee termination takes place the less likely it will be held to be as a consequence of the transfer.
If you would like to find out more about TUPE click here.
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Our track record
1995 - Transfer of Electrical Retailing Business under TUPE
2004 - Transfer-in of IT Services Operation supporting a major Insurance company
2007 - Managed the TUPE transfer-in of Chauffeuring team following the re-assignment of a contract of service by a major international Media and Information company
2008 - Advised a major Property Services Company on the development of their strategy for Outsourcing IT Services and managing the TUPE issues within a context of multiple previous acquisitions and transfers