--- title: What is a TUPE transfer? Employer guidance | HR blog description: What is TUPE and how does it affect SMEs when changing owners? Marcus Difelice from JMW Solicitors explains when TUPE applies and the consultation process. image: https://www.myhrtoolkit.com/hubfs/TUPE-transfer.jpg --- ** Call us ** Menu ** [0345 225 0414](tel:03452250414) - [Customer Support **](https://www.myhrtoolkit.com/support) - [Login **](https://app.myhrtoolkit.com/user_portal/) [![myhrtoolkit-agilio-logo-colour-800px](https://www.myhrtoolkit.com/hs-fs/hubfs/Logos%20and%20Brand/myhrtoolkit-agilio-logo-colour-800px.png?width=800&height=82&name=myhrtoolkit-agilio-logo-colour-800px.png "myhrtoolkit-agilio-logo-colour-800px")](http://myhrtoolkit.com) [![myhrtoolkit-agilio-logo-white](https://www.myhrtoolkit.com/hs-fs/hubfs/Logos%20and%20Brand/myhrtoolkit-agilio-logo-white.png?width=1000&height=103&name=myhrtoolkit-agilio-logo-white.png "myhrtoolkit-agilio-logo-white")](http://myhrtoolkit.com) # What is a TUPE transfer? Employer guidance | HR blog Published on October 26, 2021 by [Marcus Difelice](https://www.myhrtoolkit.com/blog/author/marcus-difelice) **    [Employment law](https://www.myhrtoolkit.com/blog/tag/employment-law) · [Finance](https://www.myhrtoolkit.com/blog/tag/finance) ![TUPE transfer](https://www.myhrtoolkit.com/hubfs/TUPE-transfer.jpg) *What is TUPE in HR and how does it affect SMEs when changing owners? Marcus Difelice, a Partner from the JMW Solicitors Employment Team, explains what TUPE involves, when it tends to apply or not apply, and the TUPE consultation process.* ## What does TUPE mean? When a business changes owner, its employees may be protected under the Transfer of Undertakings (Protection of Employment) regulations (TUPE). Although TUPE applies to employees of businesses in the UK, the head office of the business could be in another country. However, the part of the business that is transferring ownership must be in the UK. The size of the business does not matter. If TUPE applies: - The employees’ jobs usually transfer over to the new company (although exceptions could be if they’re made redundant or in some cases where the business is insolvent); - Their [employment terms and conditions](https://www.myhrtoolkit.com/blog/negotiating-terms-conditions-employment) transfer; - Continuity of employment is maintained. ## TUPE rules: when does TUPE apply? ![when does TUPE apply](https://www.myhrtoolkit.com/hs-fs/hubfs/HR-system-benefits-1.jpg?width=1000&name=HR-system-benefits-1.jpg) TUPE applies to a "relevant transfer", which is defined to cover the following two types of event: - A transfer of a business, undertaking or part of a business/ undertaking where there is a transfer of an economic entity that retains its identity (a business transfer). Such transfers are also known as "standard transfers". - A client engaging a contractor to do work on its behalf, reassigning such a contract or bringing the work "in-house" (a service provision change). This is also known as the "extended transfer definition". Some transfers will be both a business transfer and a service provision change. ### When does TUPE not apply? The question of when TUPE does or does not apply is not straightforward and will require analysis of the individual facts of the case. However, in general, TUPE does not apply to: - Transfers of shares - Transfers between public administrations - Transfers of assets where there is no transfer of the business as a going concern More specifically in relation to service provision changes, TUPE generally does not apply to: - A supply of goods for the client's use (as opposed to the supply of services). - A one-off buying in of services of short duration. - A change of client. - Situations where services are split up on a re-tendering exercise and are too fragmented to determine a service provision change. - Situations where there is no organised grouping of employees situated in Great Britain immediately before the change whose principal purpose is carrying on the relevant activities on behalf of the client. ## TUPE and redundancy ![TUPE and redundancy](https://www.myhrtoolkit.com/hs-fs/hubfs/redundancy-fair-selection-process.jpg?width=1498&name=redundancy-fair-selection-process.jpg) The new employer cannot [make employees redundant](https://www.myhrtoolkit.com/blog/making-an-employee-redundant) just because they were transferred from another employer. The new employer can consult about redundancies before the transfer if the old employer agrees. ## The TUPE consultation process The transferor and transferee have a duty to inform and, if appropriate, consult appropriate representatives of affected employees. This is defined as "any employees of the transferor or the transferee (whether or not assigned to the organised grouping of resources or employees that is the subject of a relevant transfer) who may be affected by the transfer or may be affected by measures taken in connection with it". [![New call-to-action](https://no-cache.hubspot.com/cta/default/5034683/c0f0c669-5329-49ec-b722-d766fb288459.png)](https://cta-redirect.hubspot.com/cta/redirect/5034683/c0f0c669-5329-49ec-b722-d766fb288459) ### Who counts as an affected employee? It is important to note that "employees" are a wider group under TUPE than is normally used for employment protection purposes. For instance, the employment tribunal decision of [Dewhurst v Revisecatch Ltd (t/a Ecourier)](https://www.casemine.com/judgement/uk/5de0abbc2c94e06c39fbf3ee) held that a worker (who was not an employee) fell within the scope of TUPE. This means that workers may be included in the group of "affected employees". However, this is only a first instance decision and is a departure from the previously accepted position that TUPE does not apply to workers. It remains to be seen whether businesses will now treat TUPE as applying to workers, or whether there will be no change in practice until or unless there is confirmation of the decision at the appeal stage. *Learn more: *[*What is the difference between a worker and an employee?*](https://www.myhrtoolkit.com/blog/difference-between-worker-and-employee) ### TUPE and recruitment ![TUPE and recruitment](https://www.myhrtoolkit.com/hs-fs/hubfs/alternative-recruitment-strategies-1.jpg?width=1000&name=alternative-recruitment-strategies-1.jpg) The EAT has held that affected employees means "those who will be or may be transferred or whose jobs are in jeopardy by reason of the proposed transfer, or who have job applications within the organisation pending at the time of transfer". However, the definition does not include others in the workforce who might apply in the future for vacancies in the part of the business being transferred. Therefore, there is no obligation to consult in relation to the future recruitment prospects of employees who did not transfer to the transferee. TUPE only requires the transferor and transferee to inform or consult with representatives of their own employees. Therefore, for example, trade unions recognised by the transferor and representing the transferor's affected employees have no right to be informed or consulted directly by the transferee before the transfer. ## How long does TUPE last after transfer? Under TUPE, the period of protection is indefinite. If the change to a transferring employee’s terms and conditions of employment is as a result of the transfer, it will be prohibited. This would still be the case if the change were to occur some years after the transfer took place. Please visit [the government website](https://www.gov.uk/transfers-takeovers) for further information on TUPE transfers. #### Read more from the myhrtoolkit blog [Making sure your small business is compliant with employment law](https://www.myhrtoolkit.com/blog/making-sure-small-business-employment-law-compliant) [How to fairly select employees for redundancy](https://www.myhrtoolkit.com/blog/how-to-fairly-select-employees-redundancy) Share this: [![](https://www.myhrtoolkit.com/hubfs/social%20share%20icons/linkedin-share-icon.png) ](http://www.linkedin.com/shareArticle?mini=true&url=https://www.myhrtoolkit.com/blog/what-is-tupe&utm_medium=social&utm_source=linkedin) [![](https://www.myhrtoolkit.com/hubfs/social%20share%20icons/twitter-share-icon.png) ](https://twitter.com/intent/tweet?url=https://www.myhrtoolkit.com/blog/what-is-tupe&utm_medium=social&utm_source=twitter) [![](https://www.myhrtoolkit.com/hubfs/social%20share%20icons/facebook-share-icon.png) ](http://www.facebook.com/share.php?u=https://www.myhrtoolkit.com/blog/what-is-tupe&utm_medium=social&utm_source=facebook) ![Picture of Marcus Difelice](https://www.myhrtoolkit.com/hubfs/8ae915a366dc72374c379f2dfb2c5326.jpg) #### Written by [Marcus Difelice](https://www.myhrtoolkit.com/blog/author/marcus-difelice) Marcus Difelice has been a Partner in the JMW Employment Team since 2020, having previously worked for Brabners LLP, Eversheds and Pinsents. He specialises in supporting employers who are defending against Employment Tribunal claims and managing employee change programmes, particularly within the hospitality sector. [Facebook](https://www.facebook.com/JMW.Solicitors) [LinkedIn](https://www.linkedin.com/company/jmw-solicitors-llp/) [Twitter](https://twitter.com/jmwsolicitors) [Website](https://www.jmw.co.uk/services-for-business/employment-law/people/marcus-difelice) ![data-migration-14](https://www.myhrtoolkit.com/hs-fs/hubfs/MYhrtoolkit%20Assets%20july%202019/data-migration-14.png?width=114&height=89&name=data-migration-14.png) ###### free data migration ![free-support](https://www.myhrtoolkit.com/hs-fs/hubfs/MYhrtoolkit%20Assets%20july%202019/free-support.png?width=114&height=89&name=free-support.png) ###### unlimited free support ![mot-1](https://www.myhrtoolkit.com/hs-fs/hubfs/MYhrtoolkit%20Assets%20july%202019/mot-1.png?width=114&height=89&name=mot-1.png) ###### 3 month MOT ## Call 0345 225 0414 for more information [![Start Free Trial](https://no-cache.hubspot.com/cta/default/5034683/7a8a8231-ca09-4f3d-86b2-3c7e203a47be.png)](https://cta-redirect.hubspot.com/cta/redirect/5034683/7a8a8231-ca09-4f3d-86b2-3c7e203a47be) #### Myhrtoolkit features #### Information #### Resources t: 0330 236 8399 e: [enquiries@myhrtoolkit.com](mailto:enquiries@myhrtoolkit.com) [**](https://www.facebook.com/myhrtoolkit) [**](https://twitter.com/myhrtoolkit) [**](https://www.linkedin.com/company/myhrtoolkit-limited) © 2021 myhrtoolkit Limited, HR software on demand. All rights reserved. Various trademarks held by respective owners. Unit 18 Jessops Riverside, 800 Brightside Lane, Sheffield S9 2RX Remove cookies    ** Top ```json // Business name, address, opening hours, logo social profiles { "@context" : "http://schema.org", "@type": "LocalBusiness", "@id": "/blog/what-is-tupe", "name" : "Myhrtoolkit Ltd", "logo" : "https://www.myhrtoolkit.com/hubfs/Logos%20and%20Brand/favicon-teal.svg", "image" : "https://www.myhrtoolkit.com/hubfs/Logos%20and%20Brand/favicon-teal.svg", "url": "https://www.myhrtoolkit.com/", "address": { "@type": "PostalAddress", "streetAddress": "Unit 18 Jessops Riverside", "addressLocality": "Sheffield", "addressRegion": "South Yorkshire", "postalCode": " S9 2RX" }, "telephone": "0345 225 0414", "openingHours": [ "Mo-Fr 09:00-17:30" ], "email" :"sales@myhrtoolkit.com", "sameAs" : [ "https://twitter.com/myhrtoolkit", "https://www.linkedin.com/company/myhrtoolkit-limited", "https://plus.google.com/+myhrtoolkit" ], "description": "HR Software for SMEs" } } ``` ```json // Colloquial site name - for mobile SERPs { "@context" : "http://schema.org", "@type" : "WebSite", "name" : "myhrtoolkit", "url" : "https://www.myhrtoolkit.com/" } ``` ```json { "@context" : "http://schema.org", "@type" : "BlogPosting", "author" : { "@type" : "Person", "name" : "Marcus Difelice" }, "dateModified" : "April 5, 2022, 8:53:31 AM", "datePublished" : "2021-10-26 08:00:00", "description" : "What is TUPE and how does it affect SMEs when changing owners? Marcus Difelice from JMW Solicitors explains when TUPE applies and the consultation process.", "headline" : "What is a TUPE transfer? Employer guidance | HR blog", "image" : { "@type" : "ImageObject", "url" : "https://f.hubspotusercontent30.net/hubfs/5034683/TUPE-transfer.jpg" }, "mainEntityOfPage" : { "@id" : "https://www.myhrtoolkit.com/blog/what-is-tupe", "@type" : "WebPage" }, "publisher" : { "@type" : "Organization", "logo" : { "@type" : "ImageObject", "url" : "https://f.hubspotusercontent30.net/hubfs/5034683/Sales%20images/myhrtoolkit-agilio-logo-colour-padded.png" }, "name" : "Agilio Software" } } ```