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I Wonder How TUPE Works in Practice: Part 2 of Our TUPE Series for Employers

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This week's article is the second in our two-part Wednesday Wonders series exploring the Transfer of Undertakings (Protection of Employment) Regulations 2006, commonly known as TUPE.

In Part 1, we covered the core principles, history, and purpose of TUPE. Now, we focus on how TUPE operates in practice, looking at legal obligations during a TUPE transfer, common challenges faced by employers, and how disputes are resolved.

TUPE in Practice: Employer Obligations During a Transfer

When a business is involved in a TUPE transfer, it must meet several legal obligations relating to affected employees.

Information and Consultation Duties

Both the outgoing (transferor) and incoming (transferee) employers are required to inform and, where appropriate, consult with employees affected by the transfer. This includes:

  • The fact that a transfer is happening
  • The date of the transfer
  • The reason for the transfer
  • Any social, economic or legal implications for employees

If the incoming employer intends to introduce any measures post-transfer - such as changes to pay frequency, working location, redundancy, or job role - they must inform the outgoing employer, who in turn must consult with employees or their representatives.

Consultation must take place "in good time" to be meaningful, although no specific timeframe is set. Employers that fail to consult could face a protective award of up to 13 weeks of full pay per affected employee - potentially 25% of the annual payroll for that business.

Employee Liability Information (ELI)

The outgoing employer is also legally required to provide Employee Liability Information (ELI) to the incoming employer. This must be done at least 28 days before the transfer and must include:

  • Employee names and ages
  • Employment terms and conditions
  • Pay information
  • Grievances or disciplinary records from the past two years
  • Details of any existing or potential employment tribunal claims

Failure to provide accurate or timely ELI can result in a penalty of up to £500 per employee via a claim in the Employment Tribunal. Data protection compliance is also crucial. Often, the initial ELI is provided anonymously to avoid breaching GDPR regulations.

TUPE in Practice: When Does TUPE Apply?

In real-world scenarios, it's not always clear-cut whether TUPE regulations apply, particularly in service provision changes.

TUPE only applies if the activities before and after the transfer are fundamentally the same. For example:

  • An outsourced IT function transferred to a third-party help desk may be covered.
  • A factory canteen being replaced by a self-service sandwich bar likely wouldn't.

Because of this uncertainty, employers should always seek specialist legal advice before proceeding.

TUPE in Practice: Common Disputes

TUPE-related disputes often arise when there's a disagreement over whether a TUPE transfer has occurred. In such cases:

  • Employees may bring claims against both the old and new employer.
  • Claims may include unfair dismissal, redundancy pay, or automatic unfair dismissal if the termination is linked to the transfer.
  • These disputes are determined by an Employment Tribunal, often starting with a preliminary hearing to decide if a transfer occurred.

Due to the complexity and duration of such cases, it's common for a tri-partite settlement agreement to be reached between the two employers and the affected employee(s).

Summary: Managing a TUPE Transfer

In summary, employers involved in a TUPE transfer must:

  • Inform and consult employees in advance
  • Share full and accurate Employee Liability Information
  • Ensure compliance with data protection laws
  • Be prepared for the possibility of tribunal claims or settlement discussions

TUPE is a complex area of employment law where the stakes are high for employers. Failing to comply can result in significant financial and legal consequences.

Need Help With a TUPE Transfer?

Our specialist Employment Law Team can provide tailored advice on TUPE obligations, employee consultation, and dispute resolution. We also offer support with drafting or updating your workplace policies and employment contracts.


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Our Make Work Pay Programme is a structured, six-month, fixed-fee solution that helps businesses:

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To learn more about the Make Work Pay Programme, click here.