Skilled Worker Migrant’s Rights Under Tupe (Transfer Of Undertakings (Protection Of Employment))

A Transfer of Undertakings Protection of Employment rights (TUPE) is a employment transition process protects employees, and their benefits, when their employment changes hands. TUPE regulations govern the transfer of employees from one company to another (in part or full). When this happens, the employees of the business automatically become employed by the new owner/ Transferee.

When are employee’s rights under TUPE engaged

Sell or buy part or all of a business as a going concern; outsource or make a “service provision change
This can be a complex situation for migrant workers, as their immigration status is linked to their employment with a specific sponsor. Grant or take over a lease or licence of premises and operate the same business from those premises.

Challenges for Migrant Workers in a TUPE Transfer

Right to Work Checks: The new employer must carry out right-to-work checks on all employees, including migrant workers. If the new employer fails to do this, they could be fined or even lose their sponsor license.
Transfer of Sponsorship: Sponsored workers do not automatically transfer to a new sponsor when there is a TUPE transfer. The new employer will need to apply to become a sponsor in their own right.
Deadline for Sponsorship Transfer: There is a 60-day deadline for the new employer to complete a sponsorship transfer. If the transfer is not completed within this deadline, the migrant worker could lose their right to work in the UK.
Key Points for Employers

It is important to seek legal advice before a TUPE transfer to ensure that all immigration requirements are met.
The new employer must carry out right-to-work checks on all employees, including migrant workers.
The new employer will need to apply to become a sponsor for any sponsored workers they wish to employ.
There is a 60-day deadline for the new employer to complete a sponsorship transfer.

Key Points for Migrant Workers

  - You should be informed by your employer if a TUPE transfer is going to take place.
  - You have the right to transfer your sponsorship to the new employer.
  - The new employer must carry out right-to-work checks on you.
  - There is a 60-day deadline for the new employer to complete your sponsorship transfer.
  - If you are concerned about your immigration status after a TUPE transfer, you should seek legal advice.

Additional Considerations

Obligations of the Transferor (Old Employer)
  - The transferor (old employer) must notify the Home Office of the TUPE transfer and provide details of the migrant workers affected.
  - The transferor must cooperate with the new employer to ensure a smooth transfer of sponsorship.
  - The transferor must keep records of the TUPE transfer for a minimum of six years.

Potential Issues for Migrant Workers
  - If the new employer fails to apply for a sponsor license or complete the sponsorship transfer within the 60-day deadline, the migrant worker could lose their right to work in the UK.
  - If the new employer conducts a redundancy process after the TUPE transfer, migrant workers may be unfairly disadvantaged.
  - Migrant workers may have concerns about their job security or working conditions after the TUPE transfer.

Seeking Legal Advice It is advisable for both migrant workers and employers to seek legal advice before, during, and after a TUPE transfer. A qualified immigration lawyer can advise on the specific requirements and implications of the transfer for your individual circumstances.

A TUPE transfer can be a complex situation for migrant workers, but with careful planning and legal advice, it is possible to ensure that your immigration status is not affected.

I hope this expanded version of the article is helpful. Please note that this is just a general overview of the topic and you should always seek legal advice from a qualified immigration lawyer for specific advice.

Don’t Wait – Contact us Today

Sponsor license suspension is a stressful situation, but with the right legal support, you can overcome it. At Kings Court Law, we understand the complexities of sponsor compliance and possess a proven track record of successful reinstatement. Don’t wait until it’s too late. Contact us today at office@kingscourtlaw.com or call 02080883088 to book a free consultation to discuss your situation and explore the best course of action.