If you’re a small business owner, facing a TUPE (Transfer of Undertakings (Protection of Employment)) transfer can be daunting. Understanding the process is crucial to avoiding unnecessary complications and expensive litigation.
In this blog we set out the steps you need to help you manage the transfer process smoothly and avoid common pitfalls.
What is a TUPE transfer?
TUPE provides a mechanism to ensure that when a business is transferred to a new employer, the affected employees automatically transfer too, with the same pay, benefits and job rights. The employees’ continuity of service is maintained, and the new employer takes on all the previous employer’s responsibilities, including:
- Legal disputes, including discrimination claims or other breaches of equality laws
- Responsibility to provide an occupational pension scheme
- Responsibility for National Minimum Wage liabilities
For more information, see our Q&A on what rights and liabilities transfer with employees in a TUPE transfer.
How to conduct a TUPE transfer
Whether you are an incoming employer or outgoing employer, there are several steps to consider when conducting a TUPE transfer. The duties can vary between the two employers, but you will be jointly responsible for meeting TUPE requirements. You can find out more about how to work together in the TUPE process in our Q&A here.
Step 1: Identify which employees are affected
You need to identify which employees will be part of the transfer. TUPE applies to all employees who are assigned to the business or service being transferred. This includes full-time, part-time, and temporary employees, but not agency workers.
For more information, see our Q&A on which staff will be transferred under TUPE, here.
Step 2: Informing your employees
You are required to give notice and consult employees (or their representatives) about the transfer at least 28 days before the transfer happens. This includes providing information about why the transfer is happening, how it might affect them, and any changes that could occur.
We have documents and toolkits to help you through this process. If you are transferring employees away from your business, you can use our TUPE – Letter providing information for employees (outgoing employer). If you are transferring employees into your business, you can use TUPE – Letter providing information for employees (incoming employer). These letters are also found in the TUPE transfer toolkit for outgoing employer and TUPE transfer toolkit for incoming employer.
Step 3: Employee consultations
You must conduct an employee consultation to exchange information, and explain the TUPE process. You should:
- Consider any representations made by the employees or their representatives;
- Respond suitably to any representations made; and
- Explain your reasons if you reject the representations.
This can take place over a series of meetings over the consultation period. You should take a note of what is covered in each consultation meeting.
See TUPE – Consultation meeting agenda for an example of an agenda for an initial consultation meeting.
Step 4: Deal with objections
Changing businesses may not always be plain sailing. New roles and responsibilities may pose significant difficulties for employees, who can present valid objections to the transfer.
If a transferred employee objects to the transfer, they are considered to have resigned from employment with the outgoing employer and will have the benefit of any termination rights.
If the employee feels that their objection is forced because of detrimental changes to their working conditions, they could be considered to have been dismissed and may pursue a claim in unfair dismissal. For instance, in a recent case the EAT upheld a bus driver’s objection to a TUPE transfer that would require him to undertake a lengthy commute to his new bus route assignment. This was deemed to be a dismissal by the outgoing employer and could result in unfair dismissal proceedings.
You can use our Letter for employees objecting to transfer to confirm that their objection is a resignation. You can also find this letter, along with other useful documents and guidance, in our TUPE transfer toolkit for outgoing employer.
If you are an incoming employer, you can use our suite of documents in the TUPE transfer toolkit for Incoming Employers.
Post-transfer review
Even with a well-executed TUPE plan, there may be uncertainty over new roles and benefits. Remember to follow up your TUPE transfer by reviewing contracts to ensure that any prior agreements and benefits (such as union agreements) are honoured by the new employer.
Incoming employer duties: dismissal, change of conditions and redundancy
Dismissal after a TUPE can be a delicate process. If the transfer is the reason for dismissal, it will automatically constitute unfair dismissal. Any negative change in an employee’s terms of employment made because of TUPE may be void.
An exception to dismissal or change of conditions is if you have an economic, technical or organisational reason (often referred to as an ETO reason) that requires a change in your workforce. Find out more about what may qualify in our Q&A here.
Redundancies after a TUPE transfer also need to be handled with care to avoid costly litigation. Redundancies are permitted if there is a real organisational need, provided that the category of employees qualifying for redundancy includes all employees provide the relevant service, and the proper process is followed.
For more about redundancy after a TUPE transfer see our Q&A on post-transfer issues.
Finally…
Don’t forget to check in with your employees for any concerns they have about the transfer. Clear, open communication will help ensure a smooth transition and maintain good morale.
The content in this article is up to date at the date of publishing. The information provided is intended only for information purposes, and is not for the purpose of providing legal advice. Sparqa Legal’s Terms of Use apply.
Rahul joined Sparqa in 2025 from the Commercial Court, where he served as a Judicial Assistant. He has active interests in commercial, corporate and employment developments which he pursues alongside teaching undergraduate law.