What happens if an employee refuses to transfer during a TUPE?

 

If an employee has been identified as being part of an organised grouping assigned to a transferring entity, i.e., TUPE does apply to their role, then their employment automatically transfers to the new employer on the transfer date.

However, employees do have the right to object to the transfer if they wish, so here are some questions you may be asking if you are conducting a transfer and employees may not be happy about it.

Why would someone object and how can I prevent it?

In our experience the most common reason for the objection is quite simple – the employee doesn’t want to work for the new employer. This is often because of uncertainty and feeling insecure – the new employer is not known to the employee and there may be fears about what working there will be like, will they attempt to change terms, revoke flexible working arrangements or make redundancies.

Of course, as a transferor you will not have control over how the new employer behaves, however by making sure employees are involved, have as much information as possible and also that the new employer has the opportunity to engage with employees prior to the transfer, this may reduce the likelihood of objections.

My transferring employee wants to stay with me. Do I have to keep them?

No, if their role is transferring over and they refuse to go, you don’t have to find an alternative role for them. Sometimes employees object in the belief that they will therefore be able to stay at the current employer, and it is important if someone does object, to be clear what the consequences will be, so that they are making an informed decision.

How must employees object?

Employees can object to a transfer by either informing the transferor (their current employer) or the transferee (the new employer). In practice in the majority of cases they’d inform their current employer in advance of the transfer that they don’t wish to go. There isn’t any specific rule about how they object, so if they just grumble during the process that wouldn’t necessarily ‘count’. You’d normally expect them to formally object in writing.

When must they object by?

Case law indicates that they should normally object before the transfer takes place, and of course this is most likely to be the situation. However, in exceptional circumstances, such as they were not informed of the transfer in time, an employee’s objection arriving afterwards could be valid.

What happens if they object?

As the transfer is effectively automatic, the impact of an objection is that their employment will end at the transfer date. It wouldn’t be a dismissal, because neither the transferor or transferee would be taking the decision.

Would they be entitled to redundancy pay or notice pay?

Even though their role no longer exists at the transferring employer, an objecting employee wouldn’t be entitled to redundancy pay from either employer, as the role itself isn’t redundant, it has simply moved from one organisation to another.

Similarly, although it’s similar to a resignation, as the transfer date would automatically be their termination date, but they are on a contractual notice period that would take them over the transfer date, neither employer is obliged to keep them employed (and therefore paid) longer. If they were resigning in normal circumstances, obviously they’d be obliged to serve out a notice period and the employer would be obliged to pay them accordingly.

 

Clearly if there is a transfer happening and an employee objects, it is not likely to be an amicable situation, so if you can work with them to deal with concerns first and avoid it, that would be sensible, and at least be clear about what objecting will ‘look like’ so they are fully aware. If you are the transferor, you are required to make sure the transferee has accurate information about who is transferring, so in the event of an objection, make sure you update their information.

 

If you’d like more advice on handling a TUPE and dealing with employee objections, do get in touch.