TUPE or not TUPE – that’s actually NOT the question.

If you’ve ever been involved in the transfer of a business, whether the sale of the whole business, or just a part of it, or a contract being transferred, you’ve probably come across the principal of TUPE, even if you haven’t had to deal with it in detail.

TUPE stands for Transfer of Undertakings (Protection of Employment) Regulations 2006, which is a very complicated piece of legislation, but the principal is very simple.  If a business transfers from one entity to another, so do any employees who were involved exclusively or principally in that business or contract.

There may be arguments over which employees are affected.

There may be discussions about what terms should be transferred.

There may be disagreements about whether you want to keep/take those staff.

But TUPE is TUPE and you can’t avoid it or get out of it – if it applies, and if you take the business but you don’t take the staff, be ready for an employment tribunal claim.

It is certainly something you should take into account if you’re buying a business or pitching to take over a contract for the supply of services from the incumbent supplier.

However, what may not be obvious is whether anything else transfers.

In a recent case, someone who suffered damage at the hands of staff supplied by one contractor, tried to pursue the contractor to whom all the staff had since been TUPE transferred.

Given that employers can be held vicariously liable for the acts and omissions of their staff, you can understand why the Claimant believed that the entity that employed the staff at the time that proceedings were issued was the right party to pursue.

However, the Court disagreed, pointing, amongst other things, to the name of the relevant legislation – TUPE.  The name confirms that the purpose of the regulation is the Protection of Employment, nothing else.  It cannot be used to hold the new entity to be liable if they weren’t in charge at the time of the incident.  The fact that the former employer no longer exists would not be a good reason to look elsewhere, although it is a good reminder about why it’s always best to take action at the earliest opportunity.

Kleyman & Co Solicitors.  The full-service law firm. Turn to Us to Pursue your Entitlements.