FAQ/TUPE – can an employee object to transferring under UK’s TUPE rules?

When a business or service changes hands, TUPE rules mean that employees move across to the new employer automatically. But not everyone wants that to happen. Some employees may prefer to stay put and not transfer at all. So, can they object? And if so, what does that actually mean for them in practice?

Take an example. A catering contract moves from one provider to another. The staff are due to transfer across with all their terms and conditions. But one of the catering assistants says they don’t want to move – they’d rather just leave. Are they allowed to do that? And what are the consequences if they do?

On the line from Glasgow to help with that, Anthony Convery:

Anthony Convery: “Yes, an employee has the right to object to the transfer under TUPE. This means they can choose not to become an employee of the new employer. However, the legal and practical consequences of objecting are often misunderstood, and it’s vital that both employers and employees understand what this means.”

Joe Glavina: “How might an employee go about objecting?”

Anthony Convery: “There is no set form or wording required, but the employee must clearly inform either the old employer or the new employer, before the transfer takes place, that they do not wish to become employed by the new employer. This is sometimes referred to as a TUPE objection. The objection must be made before the transfer date. If the employee waits until after the transfer has taken place, they will already have become an employee of the new employer by law and will need to resign or negotiate a termination instead.”

Joe Glavina: “What happens if an employee objects?

Anthony Convery: “If a valid objection is made the employee’s contract does not transfer to the new employer. Their employment terminates automatically on the date of the transfer. The employee is not treated as dismissed — which means they are not entitled to statutory notice pay, redundancy pay, or any form of compensation unless there are exceptional circumstances. This is an unusual legal position: the employee loses their job but cannot claim dismissal, because TUPE deems it to be a voluntary resignation.”

Joe Glavina: “Are there exceptions?”

Anthony Convery: “Yes, there is one key exception. If the employee is objecting because the transfer involves a substantial change to their working conditions to their material detriment (for example, a change in location, hours, or reporting structure), then the law may treat the objection as a constructive dismissal. In that case the employee may be able to bring a claim for unfair dismissal. Compensation may be awarded if the employer cannot justify the changes with a valid economic, technical, or organisational (ETO) reason so it’s important to understand why the employee is objecting — and whether their reason could give rise to a claim.”

Joe Glavina: “What is best practice for employers?”

Anthony Convery: “For HR professionals, there are a number of steps that can help manage objections properly. First, explain the TUPE process clearly to affected employees, including the right to object and the consequences of doing so. Secondly, record any objections in writing and acknowledge them formally. Third, avoid giving advice or steering employees toward objection - provide neutral, factual information. And finally, where objections are based on potential changes, evaluate whether the changes could amount to a material detriment, and seek legal advice where necessary.”

We have added this programme to our FAQs series of programmes. To find them just type ‘FAQ/TUPE’ in the search engine of the Out-Law website.