This guide is maintained as a current resource for September 2026 and covers only the laws of England and Wales. Information is for general guidance, not legal advice. Consult a qualified solicitor for advice specific to your situation.
Comprehensive guide to TUPE transfers and workplace discrimination rights in England and Wales, explaining how employment contracts and discrimination protections transfer under TUPE, how liabilities are treated, key case law, and practical steps for employees and employers navigating Equality Act obligations after a transfer.
When a business or part of a business changes hands in England and Wales, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) protects employees by transferring their existing employment contracts and rights to the new employer. TUPE aims to maintain continuity of employment and protect rights such as terms and conditions of employment, continuity of service, and statutory claims. However, TUPE's interaction with discrimination law - particularly rights and liabilities under the Equality Act 2010 - raises specific issues for both employees and employers. This guide explains how TUPE works, how discrimination rights are preserved during transfers, how claims operate, and practical considerations for navigating workplace discrimination issues in TUPE contexts.
What Is a TUPE Transfer?
A TUPE transfer occurs when a business, part of a business, or a service provision changes from one employer to another, such as through a sale, outsourcing or re‑tendering of a contract. Under TUPE, employees assigned to the transferring entity automatically move to the new employer with their existing employment contracts, including continuity of employment and accrued rights. Employers are also obliged to inform and consult employees about the transfer and its implications.
TUPE applies broadly in both public and private sectors where an identifiable part of a business or service moves to a new employer. It protects employees defined as having legal employment status - typically those employed under contracts of service rather than genuinely self‑employed individuals.
Preservation of Employment Rights Under TUPE
Continuity of Service and Contract Terms
Under TUPE, an employee's contract including terms and conditions transfers automatically to the new employer. This means that holiday entitlement, pay, work patterns and other contractual rights continue on the same basis after the transfer. Continuous service also carries over, which can affect rights such as statutory redundancy pay or eligibility for unfair dismissal claims.
The new employer must maintain these terms unless changes are justified by a valid economic, technical or organisational (ETO) reason that entails changes in the workforce. Changes made solely because of the transfer are generally void and can be challenged.
TUPE Protection Against Detriment and Unfair Dismissal
TUPE protects transferred employees from dismissals and changes that are connected to the transfer itself. Dismissal where the principal reason is the transfer can be automatically unfair unless there is a genuine ETO reason that entitles the employer to restructure or reduce the workforce.
Discrimination Rights and TUPE
Preservation of Discrimination Rights
Employees' discrimination rights under the Equality Act 2010 - including protection from direct and indirect discrimination, harassment and victimisation - are preserved on a TUPE transfer because employment contracts and associated statutory rights transfer to the new employer. A transferred employee can pursue discrimination claims against the new employer for acts occurring after the transfer where the new employer is their legal employer.
The UK Government's guidance confirms that TUPE transfers all rights, powers, duties and liabilities in connection with the employment contract, meaning that current and historic contractual rights associated with discrimination protections continue after transfer.
Limits on Transfer of Liability
Although rights transfer, recent case law clarifies important limits regarding discrimination liabilities under TUPE. In Sean Pong Tyres Ltd v Moore the Employment Appeal Tribunal (EAT) held that liability for discrimination under the Equality Act does not transfer to a new employer where the claimant did not transfer, even if the alleged perpetrator did. The EAT explained that primary liability under the Equality Act is owed by the employer to the claimant under their contract and cannot be shifted to a party that is not the claimant's employer.
This means that a new employer may not automatically inherit discrimination claims brought by individuals who were not part of the TUPE transfer, even if the alleged wrongdoing involved employees who did transfer.
Practical Implications for Discrimination Claims
Claims by Transferred Employees
Transferred employees retain their discrimination rights against the new employer. If discriminatory conduct occurs after the transfer, they can bring claims in an employment tribunal against the new employer because the employment relationship continues with that employer.
Employers should therefore carefully monitor post‑transfer equality and diversity compliance and take steps to prevent discriminatory practices. Tribunal claims typically must be notified to Acas for early conciliation before the tribunal claim can be lodged, and there are strict time limits - generally three months less one day from the act complained of - for bringing claims.
Historic Discrimination and Liability
Liabilities relating to discrimination that occurred before a TUPE transfer may transfer with a transferring employee and their contract. If the employee has brought or could bring a claim linked to the period before a transfer, the new employer may inherit liability if the claim is connected to that employee's contract. For claimants who did not transfer, such liabilities remain with the original employer. This distinction underscores the importance of due diligence for employers involved in TUPE transfers, particularly where ongoing grievances or grievances raised shortly before a transfer might impact future liabilities.
Indirect Discrimination and Post‑Transfer Terms
Employers must assess whether implementing changes after a transfer could amount to indirect discrimination. For example, if incoming employees have significantly different pay or benefits compared with the existing workforce, this may disproportionately disadvantage a group with a protected characteristic and lead to claims. Recent employment appeal guidance highlights that employers should consider harmonisation and comparison of terms carefully to mitigate indirect discrimination risks.
Practical Steps for Employees
- Confirm TUPE status: Understand whether and how TUPE applies to your situation and whether you transfer to a new employer.
- Monitor terms and conditions: Ensure that your contractual rights, including protection against discrimination, continue after a transfer.
- Keep records: Document any post‑transfer discriminatory conduct with dates and details to support tribunal claims.
- Early conciliation: Notify Acas early if you intend to bring a discrimination claim to preserve your rights.
Practical Steps for Employers
- Due diligence: Before a transfer, review potential discrimination liabilities and raise them in transaction negotiations, including through warranties and indemnities.
- Equality impact analysis: Review and, where necessary, adjust terms after transfer to avoid indirect discrimination.
- Training and policy alignment: Ensure the new employer's policies and training incorporate anti‑discrimination and equality provisions.
- Consultation and communication: Conduct meaningful employee consultation and provide clear information about ongoing rights and responsibilities.
Common Questions
Does TUPE protect discrimination rights?
Yes. TUPE ensures that a transferring employee's contractual and statutory rights, including protections under the Equality Act 2010, continue with the new employer after a transfer.
If I didn't transfer, can my claim move to the new employer?
Where you did not transfer, discrimination liability for claims you bring usually remains with the employer you had at the time, even if the alleged perpetrator transferred. A new employer generally cannot be added as a defendant if you were never in their employment.
Can employers harmonise terms after TUPE?
Post‑transfer changes to terms and conditions are subject to strict restrictions under TUPE. Any changes that are discriminatory or solely because of the transfer are void unless justified by a valid ETO reason and negotiated appropriately.
Final Thoughts
TUPE protects employment contracts and discrimination rights when employees transfer from one employer to another in England and Wales. Transferred employees retain their rights against the new employer, and discrimination claims related to ongoing employment can be brought where statutory tests are met. However, liability for discrimination that occurred before the transfer and related to non‑transferring employees generally remains with the original employer. Employers and employees should understand how TUPE preserves rights and interacts with discrimination law, take practical steps to comply with equality obligations, and prepare for potential claims through careful planning, documentation, consultation and legal advice when needed.
