What does TUPE mean when changing security providers?

In a TUPE security provider change, the incoming contractor can’t choose whether existing staff transfer. Where TUPE applies, assigned employees normally transfer automatically, with their employment contracts and continuity of service preserved.

The practical question is whether the change meets the legal test, not whether either provider wants the officers to transfer. A new contract, different uniforms or revised management arrangements don’t settle that question.

Start by defining the security activities, identifying the staff organised to perform them, and recording what will change.

Key takeaways

• TUPE can apply when security services are outsourced, brought in-house or transferred between contractors, but the facts determine the result.
• Employees assigned to a qualifying service normally transfer automatically on their existing employment terms, without needing to consent.
• The outgoing employer must provide the required employee details at least 28 days before the transfer, subject to a limited exception.
• Both employers have information and consultation responsibilities, including towards affected staff who will not transfer.
• Changes to pay, shifts, workplace or staffing require separate consideration; a transfer does not authorise them.
• Licensing, screening, payroll and operational handover arrangements need named owners alongside the employment process.

What TUPE means for a security provider change

TUPE stands for the Transfer of Undertakings (Protection of Employment) Regulations 2006. The regulations protect employment when a business or qualifying service moves to another employer.

The TUPE Regulations 2006 cover business transfers and service provision changes. Changing the contractor providing an existing guarding service can fall within the second category.

The employer changes, but employment continues

The outgoing employer is the transferor. The incoming employer is the transferee.

Where TUPE applies, relevant employment contracts normally transfer by law. The incoming provider takes over associated employment rights and liabilities, subject to exceptions. It can’t avoid that result simply by declining to offer new contracts.

A share sale does not itself transfer employment if the employing company remains the same legal entity. A business sale involving a transfer of an undertaking may engage TUPE, but not every sale triggers the regulations.

Establish the correct legal scope

This guidance focuses on England, Scotland and Wales. Northern Ireland has separate service provision change regulations, so a UK-wide contract can require more than one legal assessment.

TUPE application depends on the actual arrangements. This is general information, not legal advice on a particular transfer.

When does a security contract change trigger TUPE?

A service provision change can cover first-time outsourcing, replacement of one contractor by another, or insourcing. Security services are not exempt because they operate overnight, use relief officers or sit within a wider facilities management contract.

Identify the organised grouping

Immediately before the change, there must be an organised grouping of employees situated in Great Britain. Its principal purpose must be carrying out the relevant activities for the client.

In plain English, identify whether the employer has organised staff around that client’s work. A dedicated gatehouse team may meet that description. Officers who happen to spend many hours at one site do not necessarily form a qualifying grouping.

One employee can constitute an organised grouping. The test concerns organisation and purpose, not a minimum team size.

Compare the activities and the client

The activities after the change must remain fundamentally the same, and they must be carried out for the same client. Compare actual duties, operating hours, locations and delivery arrangements.

Replacing one guarding company with another whilst retaining access control, patrols and incident response points towards continuity. Replacing a substantial staffed operation with a materially different remote service needs closer assessment.

The service must not consist wholly or mainly of supplying goods. There is also an exception where the client intends the activities to relate to a single specific event or task of short-term duration.

An event security contract is not automatically outside TUPE. Its purpose and duration matter.

Acas guidance on TUPE transfers explains the distinction between business transfers and service provider changes. A changed service model may fail one test without removing the need to consider the other.

Which security staff are assigned to the service?

Establishing an organised grouping does not mean every employee who has worked at the site transfers. The separate question is which employees are assigned to that grouping immediately before the change.

Examine deployment rather than job titles

Review contracts, assignment records, rotas, reporting lines and the way the outgoing provider manages the service. Time spent on the contract is relevant, but it is not a universal percentage test.

A dedicated site supervisor may be assigned even where some duties occur away from the premises. A regional manager overseeing several contracts requires a different assessment.

Relief officers, shared patrol drivers and control room staff need particular attention. Record how their work is organised, rather than relying on the cost centre used for invoicing.

Employees absent through sickness, maternity leave or another authorised absence should not disappear from the assessment because they are missing from the current rota.

Separate employment status from contractual labels

Genuinely self-employed individuals are outside TUPE employment protection. Agency arrangements, casual contracts and worker status require closer analysis.

In Dewhurst v Revisecatch Ltd t/a Ecourier, concerning a 2018 courier transfer, an Employment Tribunal interpreted the words “or otherwise” as potentially extending TUPE protection to workers.

That first-instance decision, reported as subject to appeal, is not binding authority. It should not be presented as a settled rule that every worker transfers.

Identify the actual employer and contractual relationship for agency personnel. The latest invoice or a “self-employed” label does not determine employment status. Obtain specialist advice where the proposed transfer list depends on this distinction.

Assign responsibilities to the client and both providers

A contractor change involves three operational parties, but employment responsibilities do not sit equally with all three.

The outgoing and incoming employers

The outgoing provider should identify potentially transferring employees, provide the required statutory transfer details accurately, and inform and consult its affected workforce.

The incoming provider should assess assignment, understand inherited terms and liabilities, and explain any proposed measures to the outgoing employer. It must also consider how the transfer affects its existing employees.

Both providers need named HR, payroll and operational contacts. A contract manager may coordinate the process, but an operational handover meeting does not discharge employment obligations.

Disagreement over the transfer list should be recorded and addressed early. Leaving names unresolved until the final shift creates uncertainty over wages, supervision and employment responsibility.

The client’s role

For an ordinary contractor replacement, the client is usually neither transferring employer nor incoming employer. Its procurement timetable and service specification still influence whether the process can work.

The client should provide access, explain planned service changes and require cooperation through the commercial contract. It should avoid instructing providers to dismiss particular officers without addressing the employment consequences.

Where services are outsourced for the first time, the client may be the transferor. Where services return in-house, the client may be the transferee.

Set these responsibilities alongside the security contract terms and obligations. Commercial indemnities can allocate costs between parties, but they cannot remove employees’ statutory rights.

Build the TUPE timeline before mobilisation

TUPE planning should begin before the incoming provider commits to a staffing model or final price. The 28-day information deadline is a legal requirement, not a suitable starting point for every transfer.

Use the following sequence to separate statutory deadlines from practical planning.

Consultation must happen sufficiently early to be meaningful. TUPE does not impose a general fixed minimum consultation period.

A short procurement exercise does not remove these duties. Nor does a delay in signing the commercial contract automatically justify late information.

Record dependencies as well as dates. Payroll needs accurate terms; representatives need clear information about proposed measures; site deployment needs lawful licensing and access arrangements.

Give unresolved items an owner and a decision date. A programme showing every activity as “in progress” does not establish readiness.

Step 1: Define the service and price the inherited obligations

The incoming provider needs a clear service description before assessing staffing requirements. Broad labels such as “corporate security” or “front-of-house support” conceal important differences.

Describe the actual security activities

Record gatehouse cover, visitor management, patrols, CCTV monitoring, keyholding, alarm response and any emergency duties. State operating hours, minimum staffing and relief arrangements.

Compare the current service with the proposed specification. Removing a patrol, changing response duties or combining sites may affect both the TUPE assessment and the operational risk.

Review the business security risk assessment where the delivery model changes. A reduced staffing proposal needs an operational justification alongside its employment assessment.

Identify which duties belong to the client, which belong to the provider and which depend on another contractor.

Build the employment costs into the tender

Price the employment terms that may transfer, including contractual premiums, overtime arrangements, holiday entitlement, sick pay and employer pension obligations.

Separate inherited employment costs from equipment, uniforms, management, training and mobilisation expenditure. A low hourly price based on a standard employment package may be incompatible with the transferring workforce.

Request anonymised workforce information early enough to support bidding, with identifiable information shared when appropriate and lawful.

A provider selection exercise should test delivery capacity alongside price. Choosing a manned guarding provider also requires clear supervision, relief cover and account management arrangements.

Do not assume the incoming provider can recover an underpriced contract by reducing transferred employees’ terms.

Step 2: Provide employee liability information

The outgoing employer must give the incoming employer employee liability information, usually shortened to ELI, at least 28 days before the transfer.

A limited special-circumstances exception applies where timely provision is not reasonably practicable. Information must then follow as soon as reasonably practicable. Ordinary administrative delay is not a safe basis for relying on that exception.

Include the statutory information

The required information covers more than names, hourly rates and shift patterns.

Acas guidance on employee liability information sets out the outgoing employer’s disclosure responsibilities.

Include pending disputes rather than limiting disclosure to claims already decided. Equally, distinguish a documented liability from an untested allegation.

Keep the information current and secure

Under regulation 11, the information must relate to a specified date no more than 14 days before it is supplied. That freshness requirement is separate from the 28-day advance deadline.

The outgoing employer must notify subsequent changes in writing. Updated pay, a new grievance or an employee leaving before transfer can change the position.

For security operations, additional due diligence should cover licences, relevant training, holiday balances, screening status and site authorisations. These records are not all statutory ELI.

Use controlled access and a lawful basis for sharing personal information. Criminal-record and health information require particular care. An unrestricted email attachment is not an adequate information-handling procedure.

Step 3: Inform staff and consult on proposed measures

Both employers must inform appropriate representatives of affected employees about the transfer. Consultation is required over measures envisaged in connection with it.

A transfer announcement communicates a decision. Consultation gives representatives a genuine opportunity to discuss proposed measures before they are settled.

Explain the transfer and its implications

Required information includes the fact of the transfer, its proposed date, the reasons, and its legal, economic and social implications for affected employees.

Employers must also explain envisaged measures, or state that none are proposed. Relevant information about agency workers must be provided where required.

Security-related measures can include changed reporting arrangements, uniforms, payroll dates, workplace locations or working practices. A measure need not involve a contractual change.

The incoming provider must give the outgoing employer information about its proposed measures so that the outgoing employer can fulfil its duties.

Use clear distinctions between agreed arrangements, proposals and unresolved questions. Presenting an intended rota as final before consultation limits the opportunity for meaningful discussion.

Use the correct representatives

A recognised independent trade union normally represents employees within its bargaining scope. Otherwise, appropriate existing representatives or elected employee representatives may be needed.

Where there are no existing representatives, direct consultation can be permitted if the employer has fewer than 50 employees or fewer than 10 employees are transferring.

The conditions matter. A small transferring team does not permit an employer to bypass an existing recognised union.

Consult with a view to seeking agreement on measures, consider representations and explain responses. Agreement is not guaranteed, but the discussion must be genuine.

Acas guidance for employers and employees provides the framework for these duties. Keep records of information supplied, meetings, questions, responses and changes made following consultation.

Step 4: Prepare the security handover without resetting employment

The employment transfer and the operational handover need separate controls. Completing one does not establish that the other is ready.

Maintain lawful deployment and site access

Assign responsibility for SIA licence status, relevant licence categories, training evidence and site-specific authorisations. Licensing depends on the activity being performed, not simply the job title.

TUPE does not remove licensing requirements. Equally, an outstanding licence query does not itself determine whether an employment contract transfers.

Review screening records and any gaps against the applicable contractual or screening requirements. Avoid treating a change of provider as permission to reject transferring employees through a fresh recruitment exercise.

Arrange access passes, emergency contacts, assignment instructions and induction on the incoming provider’s reporting systems. Preserve necessary knowledge about vulnerable areas, recurring incidents and escalation routes.

Control equipment, records and payroll

Identify who owns radios, patrol devices, body-worn cameras, uniforms, keys and other equipment. Their ownership does not automatically follow the employment contracts.

Set a clear changeover time for key custody, access permissions, incident reporting and management control. Explain who handles an alarm or serious incident that begins before handover and continues afterwards.

Payroll should reconcile service dates, contractual pay, deductions, holiday balances and outstanding adjustments before the first payment.

Include CCTV access, evidence retention, personal data responsibilities and breach notification arrangements in the handover. Employment records and security incident records may require different permissions.

A signed handover sheet should record outstanding actions, not conceal them behind a general statement that everything is complete.

A worked assessment of an existing warehouse guarding service

An existing warehouse guarding service can be assessed through its actual activities and staffing arrangements. The conclusion depends on those records, not on the warehouse label.

Establish what continues

Start with the service before the change: gatehouse attendance, vehicle checks, visitor control, patrols and incident escalation. Compare each activity with the incoming specification.

Retaining those functions for the same client supports continuity of activities. Changing the provider’s patrol software or uniform does not, by itself, establish a fundamentally different service.

Next, examine how the outgoing employer organised delivery. A dedicated warehouse team supports the organised-grouping test. A shared regional pool requires closer examination of allocation and purpose.

The same activity can produce different TUPE outcomes where the underlying workforce arrangements differ.

Follow the assessment through to staffing

Assess assignment for the site supervisor, regular officers, relief officers and shared support staff separately. Record the evidence and any disagreement between providers.

Where the legal tests are met, assigned employees normally transfer automatically. Existing contractual terms then form the starting point for payroll and workforce planning.

Where overnight guarding is being replaced by remote monitoring and intermittent response, reassess the activities before reaching a conclusion. A change in technology alone does not answer the question.

The practical result should be a reasoned transfer list, an identified service scope and a record of unresolved legal issues.

A tender stating “TUPE does not apply” is a commercial assertion. It does not determine the employees’ legal position.

What employment rights transfer automatically?

Where TUPE’s conditions are met, the automatic transfer of employment happens by law, though not every contractor change qualifies. The incoming employer normally inherits the employment relationship, not merely the obligation to offer work. Employees don’t need to consent to the transfer, although they can object.

Preserve terms and continuity

Existing contractual pay, working hours, holiday entitlement, contractual sick pay and notice provisions normally transfer. Relevant collective agreements and associated liabilities may also transfer.

In a relevant transfer, continuity of employment is preserved. An officer with long service doesn’t become a new starter for employment-rights purposes because the contractor changes.

The incoming provider should distinguish contractual entitlements from discretionary arrangements. A handbook heading or payroll description doesn’t always settle that distinction.

Review the underlying documents and established arrangements before setting up the new payroll.

Record the new employer accurately

Confirm the change of employer in writing and retain the original continuous employment date. Avoid introducing a new probation period or presenting onboarding paperwork as a replacement employment bargain.

Transferred employees may need induction, system access and updated contacts. Those administrative steps shouldn’t reduce their existing rights.

An unresolved liability arising before transfer may become the incoming employer’s responsibility. That makes accurate disclosure important to both providers.

Different terms amongst employees can remain lawful after a transfer. A common uniform doesn’t require a common employment package.

Can the incoming provider change pay, shifts or conditions?

A transfer does not provide general permission to change employment terms. Changes whose sole or principal reason is the transfer are generally void unless a permitted exception applies.

Separate contractual changes from operational instructions

A new incident-reporting route may fall within ordinary management arrangements. Reducing guaranteed hours, removing a night premium or moving a fixed workplace can alter contractual rights.

Identify the contractual position before describing a change as a routine instruction. Existing flexibility clauses still require lawful use.

Acas guidance on contract changes explains the wider responsibilities involved in proposing and agreeing variations. TUPE adds restrictions beyond those ordinary contract rules.

Establish the reason and the permitted route

A change may be valid where its reason is unrelated to the transfer. An economic, technical or organisational reason entailing changes in the workforce may also permit a variation where the required agreement is obtained.

There are other limited routes, including changes permitted by the contract. They require careful assessment rather than a general reliance on operational need.

Making transferred staff match the incoming provider’s standard package is not, by itself, a valid justification.

Consent alone may not rescue a prohibited transfer-related variation. Waiting several months also does not automatically remove the connection with the transfer.

Can security officers be dismissed or made redundant?

A dismissal whose sole or principal reason is the transfer is automatically unfair, and may amount to unfair dismissal, unless the statutory ETO exception applies. Eligibility rules for particular claims still apply.

An ETO reason can make a dismissal potentially fair. It doesn’t make the dismissal fair automatically.

Explain the workforce change

Workforce changes can concern employee numbers, job functions or workplace location. The employer should identify the operational requirement and retain evidence to support it.

A genuine reduction in required guarding hours may mean roles are no longer needed and support a redundancy assessment. A preference for the incoming provider’s existing officers doesn’t establish a genuine situation where roles are no longer required.

The employer must still establish a fair reason and follow a fair procedure.

A client’s complaint about an individual officer also needs proper handling. Removing site access and terminating employment are separate decisions, even where one creates practical difficulties for the other.

Apply a fair redundancy process

Post-transfer job losses require genuine grounds, consultation, a fair selection approach and consideration of suitable alternative employment.

Avoid selecting employees simply because they transferred. Review the appropriate selection pool rather than assuming that only the incoming group can be considered.

Collective consultation duties can arise alongside TUPE where the statutory conditions are met. These are separate obligations, with separate remedies.

GOV.UK guidance on redundancy consultation explains the distinction between individual consultation and collective requirements. A TUPE meeting doesn’t automatically satisfy consultation duties for job losses.

How does TUPE affect pensions?

Pensions need separate due diligence because TUPE does not treat every pension right like ordinary contractual pay.

Distinguish accrued benefits from future provision

Pension benefits already built up are protected. That does not mean the incoming employer must always continue precisely the same pension arrangement.

Occupational pension rights relating to old age, invalidity or survivors’ benefits are generally excluded from TUPE’s ordinary automatic-transfer provisions. Separate pension protection and automatic-enrolment duties may apply.

Some benefits connected with early retirement or redundancy can fall outside the usual exclusion. Their legal character matters more than the scheme label.

Acas guidance on transferring employees distinguishes pension savings already built up from the arrangements required after transfer.

Identify the scheme obligations before pricing

The incoming provider should establish the scheme type, contribution arrangements, employee eligibility and any contractual commitments beyond basic statutory provision.

Public sector outsourcing can involve additional pension requirements or access to a public service scheme. Pension documentation may include participation agreements or deeds of adherence.

These documents are not required for every security transfer. Where relevant, they need specialist pensions advice and sufficient lead time.

Record the contribution start date and payroll treatment. A pension arrangement described in a mobilisation plan still needs to operate correctly when the first contributions become due.

What happens if an employee refuses to transfer?

An employee can object to transferring. That choice has different consequences from raising concerns about proposed changes.

Explain an ordinary objection accurately

An employee who objects normally has their employment end at the transfer. This is usually treated as a resignation, without entitlement to redundancy pay or an ordinary dismissal claim simply because they objected.

The employee does not normally have a right to remain employed by the outgoing provider. A separate agreement to redeploy them is a different arrangement.

Record an objection clearly and explain its consequences without pressure. Silence should not be treated as an objection, and employees do not need to sign acceptance forms for TUPE to operate.

Address materially worse conditions separately

Where the transfer involves a substantial change in working conditions to an employee’s material detriment, TUPE can allow the employee to treat employment as terminated and regard themselves as dismissed.

A fundamental contractual breach may also support a constructive dismissal claim. These routes require careful assessment of the facts.

A serious workplace relocation, substantial loss of hours or damaging shift change may raise these issues. Not every inconvenience reaches the legal threshold.

An employee considering resignation should obtain employment advice before acting. The wording, timing and underlying circumstances can affect the available claim.

Keep a clear record of obligations and risks

TUPE disputes often concern evidence: who was assigned, what information was supplied, which measures were proposed and whether consultation was meaningful.

Retain the decisions and supporting records

Keep the assessment proportionate, but complete enough to explain the result.

• Record the activities before and after the change, including the client and delivery model.
• Retain the evidence supporting each employee’s inclusion or exclusion from the transfer.
• Log ELI disclosure dates, corrections and subsequent written updates.
• Keep records of representative arrangements and meetings, along with responses to proposed measures.
• Assign owners for payroll, pensions, licensing, access and outstanding handover actions.
• Document the reasons and process for any proposed contractual change or role-loss decision.

These records support accountability. They do not make an incorrect legal conclusion valid.

Understand the financial exposure

Failure to inform and consult can lead to compensation of up to 13 weeks’ pay per affected employee, often described as a protective award. TUPE consultation duties are not restricted to large transfers.

Failure to provide compliant ELI can also produce a tribunal award. The normal statutory minimum is £500 for each employee concerned, although a tribunal can award less where just and equitable.

Inherited employment claims, unpaid wages and an unworkable staffing price create additional exposure. Commercial indemnities should address those risks without suggesting that liability disappears.

Frequently asked questions

How long do employees have to bring a TUPE claim?

Most relevant Employment Tribunal claims must be started within three months less one day of the relevant event. The trigger depends on the claim, such as the dismissal date or transfer date.

ACAS Early Conciliation normally comes first and can affect the limitation calculation. Raising a grievance does not itself stop the clock.

The TUPE regulations’ complaint provisions contain claim-specific rules. Obtain prompt advice rather than assuming every dispute has the same deadline.

Does signing a new security contract determine whether TUPE applies?

No. The legal test depends on the activities, client, organised grouping and employee assignment.

Contract wording can record the parties’ assessment and allocate commercial risk. It cannot prevent an otherwise qualifying transfer or remove an employee’s statutory protection.

The same applies where both providers agree that TUPE should not apply.

Can splitting the contract between providers avoid TUPE?

Dividing a contract does not automatically remove TUPE. The analysis must identify which activities continue, how they are allocated and which employees are assigned.

Fragmentation can make the assessment more difficult. It can also raise complex questions about employment transferring across more than one incoming provider.

Resolve those questions before allocating officers between contracts or issuing termination notices.

What should a provider do after receiving a tribunal claim?

Treat the response deadline separately from internal investigations or commercial discussions. GOV.UK guidance for employers facing a claim states that a response is normally required within 28 days.

Preserve the transfer records and obtain employment advice promptly. A dispute between providers over an indemnity does not suspend the tribunal timetable.

Make employment continuity part of the changeover

Changing a security provider requires a reasoned TUPE assessment, accurate workforce information and clear responsibility for employment and site operations. A new service agreement does not replace those requirements.

Establish the employment position before mobilisation. Then align discussions with staff representatives, staffing, payroll, pensions and the operational handover with that position.

A controlled transfer preserves the rights that continue and addresses proposed changes through the correct process. The first shift under the new provider should follow that preparation, not expose its absence.