Refusal to transfer

Q: Our employer has been bought out and we have been advised that TUPE will apply. One of our members does not want to work for the new company and wants redundancy instead. Can he be forced to transfer?

A: Neither the new nor the existing employer can insist that an employee transfers; an employee has the right to object. But if s/he does so, the law deems that there is no dismissal and s/he will lose any entitlement to claim unfair dismissal or redundancy.

The exception is where the employee refuses because the transfer will involve a substantial change in working conditions to his/her detriment - in such a case, the employee is entitled to treat his/herself as dismissed, although the dismissal is not necessarily unfair. (Regulation 4(9) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 applies.)