Q&A: Can staff claim extra holiday under a TUPE transfer?
Question: A group of people transferred to our business under TUPE last month.
During the consultation period, we confirmed that we would honour their pre-booked annual leave for the rest of last year, which we have done.
But one of the staff has come back to me because she thinks that she is entitled to another batch of leave (five days). Her rationale is that, because she has been moved to another organisation, she is entitled to the leave on top of the pre -agreed holiday.
I think – and hope – that she has genuinely got her wires crossed and suspect that she may have done as no one else has asked this question. But I have never done a TUPE transfer before and know that it is in no way straightforward, so I would be grateful for advice on the situation.
Answer
To be honest, I am not entirely sure from your question what the employee is actually arguing for. However, in broad terms, when an employee transfers to you from another organisation under TUPE they transfer with protection of all their existing terms and conditions of employment. This would include any terms and conditions relating to holiday entitlement. So, if under their contract with their former employer they were entitled to, say, 28 days’ holiday per year but your employees only get 23 days’ holiday under their contracts, the staff who TUPE across will still be entitled to 28 days. This may be what the employee in your situation is referring to.
Esther Smith, partner at Thomas Eggar LLP
