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Last edited 07 Jan 2022
TUPE considerations and bidding
The Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 is frequently referred to as TUPE.
These regulations protect employees’ terms and conditions when a business is transferred from one owner to another. They apply to business transfers and service provision transfers of all sizes and to both the outgoing employer and the incoming employer.
 When TUPE can be a concern
When TUPE applies, it means employees that have been assigned to a project will be transferred under the same terms and conditions - which may be more generous than the new employer would offer. This may influence a potential bidder's decision whether or not to pursue the contract.
It is not uncommon for the existence of TUPE to be phrased in vague language, such as “TUPE transfers may apply” or “the contracting authority does not expect that TUPE will apply”. Even if conditions are not clear (or details are not available), the potential contractor is likely have to comply with TUPE requirements once the terms and conditions of the contract have been accepted.
 Preparing for TUPE
It is possible to request basic information (and subsequent clarification, if necessary) regarding the number of people who will be transferred. If information is inconclusive, bidders should attempt to make an estimate of that number. This can be used as part of the negotiation process.
Bidders should also be well aware of the consequences of TUPE and should carry out due diligence when bidding on projects. The new employer may be able to suggest revisions for employees that have been inherited through TUPE, but severe changes could result in claims of constructive unfair dismissal.
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