What is TUPE?
TUPE refers to the “Transfer of Undertakings (Protection of Employment) Regulations 2006”. The TUPE rules apply to organisations of all sizes and protect employees’ rights when the organisation or service they work for transfers to a new employer.
If the business relocates, do you have to relocate?
Ordinarily, if an employer moves the location of their business then their employees may have to move with them. This will usually be covered by a “mobility clause” within the employee’s employment contract. Unless it is unreasonable, employees would ordinarily be expected to relocate with their employer within the limits as prescribed by the “mobility clause”.
If an employer’s business is taken over by another, employees` rights are protected by TUPE and as such, all existing contractual rights remain the same, including any contractual provisions regarding relocation.
Do the TUPE rules apply when a business is being transferred outside of the UK?
The answer is yes, they do apply. If a business is transferring overseas, an employee may however be entitled to opt for redundancy instead of relocating.
What is the legal position if the employee actually does want to relocate abroad?
In the recent case of Xerox Business Services Philippines Inc Ltd v Zeb 2018, Mr Zeb was contracted to work in either Leeds or Wakefield by his employer Xerox UK. His employer decided to move some of its business to the Philippines and informed affected staff that they could either relocate to the Philippines subject to the contractual terms and conditions that were applied within that jurisdiction, or they could claim redundancy. Mr Zeb decided that he did wish to relocate, but argued that he should be entitled to do so pursuant to his UK terms and conditions, those being approximately 10 times more favourable than those prevailing in the Philippines.
Mr Zeb’s employer refused his request and he was made redundant. His dismissal was deemed unfair by an Employment Tribunal Judge and his employer appealed. The decision was overturned on the basis that whilst Mr Zed was entitled to relocate under TUPE he could only insist on relocation in accordance with his employment contract “mobility clause” i.e. Leeds or Wakefield.
As such, his dismissal was in fact fair and the true reason for his dismissal was redundancy, as the requirement for him to carry out work of a particular kind in his current place of employment has ceased.
What can you do if you need advice and or assistance?
All employers must adhere to the rules of TUPE and follow the correct procedures when considering relocating employees as part of their business transfer.
In these type of cases, time is of the essence and can often have a detrimental effect on your chances of success if you do not seek advice/make representations within the permitted timescales allowed.
If you are currently facing transfer, relocation and/or redundancy at work and require legal advice and assistance then please contact one of our employment lawyers based at our Bishop Auckland office on 01388 604691.