Refusal to transfer

Q: One of our members has found out that his employer is being taken over by a firm he used to work for, and all the employees are going to transfer under TUPE. He was treated badly by that firm in the past and doesn't want to work there again. Can he refuse to transfer?

A: Employees can refuse to transfer, but by doing so they are generally deemed - under regulation 4(8) of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) - not to have been dismissed. If your member objects and does not transfer, he will not be entitled to redundancy pay or able to claim unfair dismissal.

This rule does not apply if the transfer would involve "a substantial change in working conditions to the material detriment" of the employee, in which case the refusal is treated as a dismissal (under regulation 4(9)). This means that, if employees refuse to transfer because doing so will leave them substantially worse off, they can bring a claim of unfair dismissal or redundancy.