5 TUPE Myths Costing FM Teams Dearly
Common beliefs that have no legal foundation — and the real cost of getting them wrong
""We changed the scope, so TUPE doesn't apply.""
Overview
TUPE myths don't come from nowhere — they come from mobilisation debriefs, corridor conversations, and assumptions that have never been tested against the actual regulations. This guide tackles five of the most dangerous ones head-on.
Myth 1: 'We changed the scope, so TUPE doesn't apply'
This is the most expensive myth in FM. The legal test for TUPE is not whether the scope has changed — it is whether an organised grouping of employees exists whose principal purpose is carrying out the activities in question, and whether those activities are fundamentally the same after the transfer.
Minor scope adjustments, rebranding of services, or retendering under a different contract structure do not, by themselves, take a transfer outside TUPE. If the workforce is doing substantially the same work for the same client, TUPE almost certainly applies.
The cost of getting this wrong: inheriting liabilities you didn't price, plus potential tribunal claims from employees who should have transferred but didn't.
Myth 2: 'We can harmonise terms on Day 1 if employees agree'
Under Regulation 4(4) of TUPE 2006, any variation to an employee's contract that is connected to the transfer is void — even if the employee consents to it. This is one of the most misunderstood provisions in the regulations.
The only exception is where the variation is for an economic, technical, or organisational reason entailing changes in the workforce (an ETO reason). But a desire to standardise pay across your workforce does not, on its own, constitute an ETO reason.
Harmonisation is a long-term process that requires careful legal advice. Attempting it on Day 1 creates significant tribunal exposure.
Myth 3: 'If an employee objects, they're just resigning'
Under Regulation 4(9), an employee who objects to a TUPE transfer is treated as having terminated their own employment — they are not dismissed. However, this does not mean the employer is free from liability.
If the employee can show that the transfer involved a substantial change to their working conditions to their material detriment, they may still bring a claim. The distinction between objection and constructive dismissal is a live legal question in many TUPE disputes.
Myth 4: 'Consultation only covers the staff who are transferring'
Regulation 13 requires both the outgoing and incoming employer to inform and consult 'affected employees' — and this category is broader than just the transferring workforce. It includes any employee whose employment relationship or working conditions may be affected by the transfer, even if they are staying with the original employer.
Failing to consult affected employees who are not transferring is a common compliance gap that leads to tribunal claims against the outgoing provider.
Myth 5: 'TUPE is an HR issue — we'll deal with it after mobilisation planning'
TUPE is not an HR issue. It is a mobilisation workstream. It affects workforce costs, onboarding timelines, payroll setup, Day 1 compliance, and legal exposure from the moment a contract is awarded.
The organisations that handle TUPE well are the ones that start the process at bid stage — modelling workforce costs accurately, identifying risks early, and building consultation timelines into the mobilisation programme from day one.
KEY PRINCIPLE
TUPE is not a legal formality to be managed after mobilisation planning. It is a core workstream that shapes every aspect of workforce transition from bid to Day 1.
Key Takeaways
Scope change doesn't take you outside TUPE — the test is whether activities are fundamentally the same
Harmonisation on Day 1 is void — even with employee agreement
Objecting employees can still trigger unfair dismissal claims
Consultation covers staff who aren't transferring too
TUPE is a mobilisation workstream, not an afterthought
Want to go deeper on TUPE?
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