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The TUPE (Transfer of Undertakings and Protection and Protection of Employment) Regulations 2006 apply in cases where the ownership of a business changes.

An employee who was employed immediately before the transfer automatically become an employee of the new employer, unless he or she objects to being transferred and informs either employer. In short, an employer cannot just pick and choose which employees to take on. To that end, the TUPE regulations aim to protect employees' rights in relation to being dismissed as the result of a transfer of ownership and to ensure the preservation of contractual terms and obligations. Further, both old and new employers are required to inform and consult employees affected directly or indirectly by the transfer.

Any dismissal of any employee by an employer (including either the old or the new employer) will be unfair where the sole or principal reason for the dismissal is the transfer, or a reason connected to the transfer, unless the dismissal is for an economical, technical or organisational reason (ETO).

The law surrounding TUPE can be complex, with the Employment Tribunal often needing to consider numerous legal authorities. Concise and carefully drafted written and oral submissions are therefore essential in this area. Further, the need for careful cross-examination of employers who are seeking to advance the legal defence of ETO, is necessary for employees to successfully undermine the same.

This is a key area of employment law where the assistance of experienced and robust counsel can be highly beneficial to both claimant and defendant.

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