TUPE transfer of skilled workers is quite common and require specific steps from sponsor employers. If your organisation is involved in a change of ownership, merger, takeover, de-merger, or similar change, including if you lose or accept sponsored workers under TUPE or similar protection it is vital to understand sponsorship rules relating to these changes. Your sponsor licence is not transferable and what happens to you, and your sponsored workers, will depend on whether:
• there is a change in direct ownership
• you sell all or part of, or the controlling number of shares in, your organisation
• you are partly or wholly taken over by another organisation
• you are splitting out to form new organisations.
In this article we will focus on TUPE transfers of sponsored workers.
Transfer of Undertakings (TUPE) or similar protection – sponsored workers
When a business changes owner or another business takes over part of it or a service it provides, its employees may be protected under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended) (‘TUPE’). In general terms, TUPE protection means that the employees’ jobs transfer to the new company and their terms and conditions of employment remain the same. You can find more information about TUPE on GOV.UK.
Alternatively, where TUPE does not apply (for example, staff working in the public sector), employees may benefit from similar protection to TUPE.
What TUPE transfer means for sponsored workers and sponsor employers
Workers who change employer under TUPE or similar protection do not need to make a new application for permission, and the new sponsor does not have to assign a new Certificate of Sponsorship (CoS) to the worker, provided:
• the new sponsor has a valid sponsor licence in the relevant route and has confirmed that it accepts responsibility for the worker, and
• the worker’s duties remain unchanged.
Changes of ownership and TUPE transfers impact on sponsored workers require keeping to the deadline usually 20 working days and are not straightforward matter. Sponsor employers would benefit from legal support from suitably experienced immigration lawyer. For initial discussion please contact us on 0203 488 9710 or info@thaxtedlegal.com