Rights regarding TUPE during maternity leave

Where a contract to provide services (rather than goods) is transferred from one company to another, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (commonly called ‘TUPE’) is triggered. Under this law, your employer has no choice and must (if there are 10 or more employees in total) inform a recognised union or if there is not one, representatives elected by all employees who are affected by the TUPE transfer and, if appropriate, consult with them about proposed changes.

If you are primarily assigned to work on this contract you fall within this category. Your employer must provide information about the TUPE transfer to the union/elected representatives, and, if appropriate consult with them about any changes that will take place once the transfer has happened. They have no choice about whether or not to do this. Only very limited changes are permitted and so if the changes are onerous then you can refuse to transfer and bring a claim.

As part of the consultation process, your representatives will be provided with specific information about the transfer. This information will include the transfer date and on that date your employment will transfer, on your existing terms and conditions (including length of service), automatically to the new company. They will also tell you if the incoming company plans to make any changes which might affect you, for example, change of location. If this is too far away then this may be a redundancy situation. The test will be whether the change of location is reasonable for you.

If you are made redundant when on maternity leave you have the right to be placed into a vacancy for which you have the skills, without the need for competitive interview. You will have the opportunity to engage with the elected representatives if you have concerns about any measures which are proposed, and to raise questions with them about the process more generally. You can object to the transfer across to the new employer, but this is not often recommended because by doing so, you bring your employment with your current employer to an end automatically on the transfer date and will not be eligible for notice or any other type of compensation (e.g. redundancy). You will be paid any accrued but untaken holiday as at the transfer date. Your statutory maternity pay will also be honoured.

Your employer’s letter seems to be a first step in informing you of the impending TUPE transfer and the start of the informing/consultation process. I suspect that the meeting next week will be an initial discussion of what is happening, why it is happening and what to expect next. The letter seems to be encouraging you to look for alternative roles within the existing business, and that is certainly something you should consider investigating. Bear in mind that, although you might apply for and secure one of the internal roles, you can ask the business to delay your start date until your maternity leave ends.

I recommend that you engage with the consultation process, and ask questions about the process and what the new provider is planning to change (if anything). It may be that you will be quite happy with the change in employer. However, it is sensible to look for alternative roles internally as well. If there are roles which interest you, ask your employer if they can provide training if you feel you don’t have the experience or skills for the roles, and also ask if you can delay the start until the end of your maternity leave.

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