Transfers of employment contracts
Your employment rights could be protected if you are involved in a business transfer or takeover. You could also have rights if your current or prospective employer wants to change your employment contract because of the transfer.
Information given to your new employer
The employer who is transferring you to a new employer (called the ‘transferring employer’) must provide your new employer with information about the transferring employees, including:
- identity
- age
- details contained in their statement of employment particulars
- any collective agreements which apply to them
- disciplinary actions taken towards the employees within the last two years under the statutory dispute resolution procedures
- grievances raised by the employees within the last two years under the statutory dispute resolution procedures
- grievances raised by the employees under the Labour Relations Agency Code of Practice on disciplinary and grievance procedures on or after 3 April 2011
- any legal actions taken by the transferring employees against the transferring employer within the last two years
- any potential legal actions that the transferring employer reasonably believes the transferring employees might raise
This information should be provided at least two weeks before the completion of the transfer. It should help your new employer to understand your rights and their duties and obligations to prepare for your arrival.
How your employment rights are protected
If you are involved in a business transfer or takeover that is protected under Transfer of Undertakings (Protection of Employment) Regulations 2006 and/or the Service Provision Change (Protection of Employment) Regulations (Northern Ireland) 2006, collectively known as 'TUPE', your employment rights are protected.
When a TUPE-protected transfer takes place, the new employer takes over nearly all rights and obligations in your employment contract, including:
- all the previous terms and condition of your employment
- failure of the previous employer to observe the terms of your employment contract or rights
- this can mean that you could make a claim for sex discrimination against your new employer, even though it took place before the transfer
- holiday entitlement you have built up
- the date on which your period of continuous employment started remains the same and your continuous employment is not broken
- any collective agreements previously made
If the new employer refuses to meet the terms of your contract, this will be a breach of your employment contract.
If you don't want to work for the new employer
You can refuse to work for the new employer. You must let your current or prospective employer know that you object to the transfer. You will be regarded as having resigned and will have no right to claim unfair dismissal or redundancy pay.
If you find that there has been or will be a ’substantial change‘ for the worse in your working conditions as a result of the transfer, then you have the right to resign and claim unfair dismissal.
Changing your employment contract
The TUPE protections are in place to help stop you being put on worse employment terms and conditions when you are transferred. This means that not only are your pre-existing terms and conditions transferred across on your first day of employment with the new employer, but you shouldn't lose your employment rights.
Before the transfer
The same restrictions apply to your employer before they take part in a business transfer or takeover. For example, if your employer knows your employment will be transferring to another company they can’t change your employment terms and conditions to bring them in line with the employment terms and conditions of the other company.
After the transfer
Your employer can't change your employment terms and conditions if the reason they want to make the change is because of:
- the transfer itself
- a reason connected with the transfer that is not an ‘economic or technical or organisational reason’
This means that if your employer wanted to change your employment terms and conditions for a reason not connected with the transfer they could. For example, if your new employer suddenly lost an expected order by a manufacturing company they might need to change the workforce’s employment terms and conditions.
If your employment terms and conditions are changed for one of these reasons then the changes are void and do not apply. You should get advice from the Labour Relations Agency (LRA).
Positive changes to your employment contract
If your employer wants to change your employment terms and conditions for the better this is allowed, so long as you agree. For example, your employer might want to increase your holiday so that it is a standard amount for all employees across the company.
Your employer can't validly impose new terms and conditions without the agreement of employees. Any changes have to be agreed by the employee or their trade union representatives on their behalf.
Pension rights
Your company pension (also called occupational pension) rights earned up to the time of any transfer are protected during a transfer or takeover.
However, if your old employer offered you a company pension scheme, your new employer does not have to continue an identical company pension. Your new employer should offer a minimum occupational pension matching your contributions of up to six per cent of your salary into a stakeholder pension, or equivalent alternative.
Rights to redundancy payments
After the transfer, your new employer may want to cut the number of employees. If you're made redundant or dismissed for an economic or technical reason, you may have the right to a redundancy payment.
Your employer can't select you for redundancy just because you transferred to the company. If your employer has applied fair and objective selection criteria to making redundancies and you're selected for redundancy then this would be fair.
For example, if your new employer has to close down part of a company because it's not performing and so has no business need for employees with your specialist skill, you would be entitled to qualify for the same redundancy rights as any other employee.
What to do next
Once the transfer has taken place, make sure you are given an up-to-date written statement of employment particulars. This should give the name of your new employer and say that your terms and conditions haven't changed.
Don't be alarmed if you receive a P45, this often just means your tax records are being updated, not that you are out of a job.