TUPE and TUPE+

Introduction to TUPE

The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) is a set of laws designed to protect the rights of employees when a business transfers from one owner to another.

There are two types of TUPE transfers. The first is a business transfer and normally arises where your organisation, or part of your organisation, changes from one owner to another new business. In this case, your employment terms and conditions (save in respect of occupational pension schemes) should be protected and you should automatically become an employee of the new employer.

If you work in the public sector and you are transferred to the private sector, you are normally covered by TUPE. However, TUPE does not normally apply to transfers within the public sector.

The second type of TUPE transfer covers service provision changes. This is where a company switches how a particular service is delivered by another provider, eg changing contractors or bringing a service back in-house

Normally in a service provision change transfer, activities carried out after the change in service provider must be fundamentally the same as those that were carried out before the transfer took place.  

This service provision change is sometimes known as contracting out or outsourcing. It also covers situations where outsourcing has already occurred but there is a change in the contractor carrying out those services.

TUPE does not normally cover changes in company ownership or share sale situations. If you remain employed by the same company, it is unlikely there has been a TUPE transfer, even if ownership of the company has changed.

Finally, the size of the employer does not matter on whether rights under TUPE are engaged. The key issue is whether or not a relevant TUPE transfer has taken place.  

TUPE Plus (TUPE+)

TUPE + is not a legal term and is a phrase sometimes used to refer to additional protections that may be available, usually to staff transferring from the public to private sector because a relevant TUPE transfer has not taken place.

TUPE+ helps combat the emergence of a two-tier workforce, where new employees have less favourable conditions and pay than employees transferred from the public sector. 

The Employment Rights Act 2025 aims to strengthen the position by re-introducing the guiding principles behind the ‘Two-tier workforce code’. The Government now has powers to make regulations specifying the provisions to be included in outsourcing contracts. While we are awaiting the specific regulations to be set out, the intention is that where public services are outsourced, the contractor’s workers and the public sector workers are not treated any less favorably than each other.  

TUPE+ also aspires to include the following fair employment policies, achieved by unions negotiating with the employer:

• variation to conditions of service should only be introduced following a collective agreement with a trade union;
• new recruits will be on the same or very similar terms and conditions of employment.

When may TUPE apply?

As mentioned, there are two types of transfer protected under TUPE regulations, when a business transfer or service provision change transfer takes place.  

Transfers in the public sector are not normally covered under the TUPE provisions, as the regulations are not intended to cover changes in public administration.  

Public-sector employees are sometimes transferred to the private sector when the following circumstances take place:

• outsourcing – a public sector function or service is contracted out to a company;
• a Public Private Partnership (PPP) – public sector organisations and private sector companies work together;
• privatisation – ownership of a public sector organisation is transferred to a private company.

Depending on how the change is structured, TUPE may apply. It will not apply where the employees remain employed by the same company, even if ownership of the company changes.

TUPE may also apply to charities.

TUPE and service provision changes

A service provision change happens when an employer outsources (contracts out) a service. For example, a local education authority outsources school meals to a private company which it previously provided using its own employees.

It also covers situations where outsourcing has already occurred but there is a change in the contractor carrying out those services or when a company decides to bring the service in house.

Again, the service must be fundamentally the same as those carried out before the change.

Service provision changes are common, particularly in work contracts for catering, cleaning or security.

If you are employed by a large company which decides to use an outside company to organise the work, your job and employment terms and conditions could be protected under TUPE except when the contract is:

• wholly or mainly for the supply of goods for the company’s use;
• when the service is carried out for a single event or for a task of short-term duration, for example, a conference.

What should employers do?

Employers, both old and new, are required to provide representatives of employees affected by transfers of ownership with specific information about a proposed TUPE transfer sufficiently in advance to allow voluntary consultation to take place.

If the employer of any affected employee envisages taking measures in respect of that affected employee, they must consult with the representatives of that employee with a view to reaching agreement with the affected employee in respect of the intended measures. 

Legal disclaimer 

The information contained within this article is not a complete or final statement of the law and is based on the laws of England, Wales, Scotland and Northern Ireland. 

While UNISON has sought to ensure that the information is accurate and up to date, it is not responsible and will not be held liable for any inaccuracies and their consequences, including any loss arising from relying on this information. If you are a UNISON member with a legal problem, please contact your branch or region as soon as possible for advice, or for non-employment matters call UNISONdirect.