Managers guide to transferring staff OUT on TUPE

Step 1

Determine whether TUPE applies

As soon as you become aware that there is a potential for part or all of your organisations operations to be transferred to an external organisation, irrespective of the size of the operation and the number of individuals assigned to the operation, you will need to assess the possibility that the transfer will be covered by TUPE.

It is essential that this is established early, not only to ensure that all legal duties arising from TUPE are actioned in advance of the transfer taking place, but also to ensure that you gain the confidence and co-operation of the staff that may be transferring out.

The application of TUPE depends on the particular circumstances of each case. Generally, it will be wise to assume that the regulations apply to any transfer.

Step 2

Establish which employees are affected

Having established that TUPE applies you will need to decide which employees will have the protection of the regulations.

The regulations apply to all employees, including those employed on a part-time basis and those employed on fixed-term or temporary contracts. The TUPE Regulations define an employee as any individual who works for another person whether under a contract of service or apprenticeship or otherwise but does not include anyone who provides services under a contract for services. Individuals who provide services under a contract for services, for example, the self-employed, consultants, or agency workers, are not covered.

Only employees employed by the entity immediately prior to the transfer and in the specific area concerned will have protection under the regulations and will transfer.

You will first need to identify those employees who are permanently assigned to the specific work of the department which is transferring. This can involve detailed examination of the contracts of employment, job duties and what actually happens in practice. You should also include any staff who are absent, for example on extended sick leave, unpaid leave, or maternity leave. Employees who are temporarily assigned to the specific work of a department that is transferring, for example through a secondment arrangement, will not transfer if their work normally connects them to another area of the organisation.

There are four factors which are relevant in determining whether employees are assigned to the part of