FAQs

Dismissals, which are related to the transfer of an undertaking, are governed by a special statutory regime. It is contained in regulation 8 of TUPE and has four key features:

(i) It applies to a dismissal for which the reason or principal reason is the transfer of an undertaking or a reason connected with it;

(ii) Any such dismissal is rendered automatically unfair for the purposes of the Employment Rights Act 1996 ('ERA');

(iii) The automatic unfairness rule does not apply where the reason or principal reason for the dismissal is "an economic, technical or organisational reason entailing changes in the workforce" ("an ETO reason"). In that event, the dismissal is regarded as being for some other substantial reason;

(iv) A dismissal for an ETO is therefore potentially, but not necessarily, fair. It must still pass the general fairness test contained in the ERA.

The special protection from dismissal, which employees enjoy under TUPE, is not limited to actual dismissals. It also applies to a constructive dismissal and to the non-renewal of a fixed term contract when it expires.