TUPE

The Transfer of Undertakings (Protection of Employment) Regulations 2006 protect employees' terms and conditions when a service or business transfers from one employer to another, including public-sector outsourcing and retendering.

What TUPE Is

TUPE stands for the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246), which implement the EU Acquired Rights Directive in UK law. Despite Brexit, TUPE remains fully in force as retained domestic legislation. It applies when a 'relevant transfer' occurs — either a business transfer or a service provision change — meaning employees assigned to the transferring work automatically move to the new employer on their existing terms and conditions.

When TUPE Applies in Public Procurement

TUPE is triggered in three common public-sector scenarios:

• Outsourcing — a contracting authority externalises a service previously delivered in-house
• Retendering — an incumbent supplier loses a contract and an incoming supplier takes over the service
• Insourcing — a previously outsourced service is brought back under direct public-sector control

In each case, employees who spend the majority of their working time on the affected service are likely to transfer automatically.

Key Obligations for Contracting Authorities and Suppliers

• Information and consultation: Both the outgoing and incoming employers must inform and, where measures are envisaged, consult employee representatives before the transfer. Failure to do so can result in tribunal awards of up to 13 weeks' pay per affected employee.
• Employee liability information (ELI): The outgoing employer must provide ELI to the incoming employer at least 28 days before the transfer date, covering details such as identity, terms, disciplinaries, and grievances.
• No detrimental changes: The incoming employer cannot harmonise or worsen terms solely because of the transfer; such changes are void.

Cabinet Office Guidance and the Staff Transfer Code

The Cabinet Office's *Staff Transfers in the Public Sector* statement of practice and the associated Code of Practice on Workforce Matters set out additional protections beyond statutory TUPE, particularly for local authority and central government transfers. These address pension protection, requiring incoming contractors to offer an occupational or stakeholder pension broadly comparable to the public-sector scheme.

Procurement Implications

Contracting authorities must include accurate TUPE information in tender documents, typically via a workforce information schedule. Bidders need this data to price the contract correctly; withholding or providing inaccurate information exposes the authority to legal challenge and undermines value for money. TUPE due diligence should be embedded in the mobilisation and transition plan of every service contract where a workforce transfer is anticipated.