The Transfer of Undertakings (Protection of Employment) Regulations (TUPE Regs) protects employees on the transfer of the business in which they are employed.
There are two different definitions of a transfer. The one that frequently involves carers is a services provision change. This could be the contracting out of services to an agency, reverting back to in-house care, and the transfer of the service between two successive contractors.
Employees who are employed immediately before the transfer or who are dismissed in advance because of the transfer are “protected employees”. This is unless their dismissal was for an economic, technical or organisational (ETO) reason entailing changes in the workforce. It is automatically unfair to dismiss or constructively dismiss an employee because of the transfer if not for an ETO reason. This may result in Employment Tribunal claims against your client.
Discrimination law with no minimum service requirement applies if the new employer refuses to take on employees or treats them less favourably due to a protected characteristic such as race or disability.
If you are considering bringing in a new agency, outsourcing work where you already employ someone, or intend to bring carers back in-house, it is important to seek specialist employment law advice first. We can ensure that everyone is properly consulted in good time before the transfer. This is in line with the TUPE legislation so a protective award is not made in the Employment Tribunal to each employee.
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