Redundancy After TUPE: When Can an Employer Lawfully Restructure?
Updated: 3 days ago
A TUPE transfer does not mean an organisation can never restructure. But employers need to distinguish between a genuine post-transfer business need and a dismissal that is connected to the transfer without a valid economic, technical or organisational reason entailing changes in the workforce.
Start with the business rationale
Before discussing roles or individuals, document why change is required. This may include a reduction in funding, duplication of functions, a different operating model, changes in technology, or a requirement to reorganise where or how work is performed. The rationale should be specific, evidenced and consistent with the proposed structure.
What does ETO mean?
In a TUPE context, ETO refers to an economic, technical or organisational reason entailing changes in the workforce. An employer should not treat those words as a formula to insert into a redundancy letter. The underlying facts and proposed workforce change need to support the rationale.
Consultation still matters
Even where there is a strong commercial case for restructuring, the process must be meaningful. Employees should understand the proposal, why their role may be affected, the selection approach where relevant, and the alternatives being considered. Consultation should take place while proposals remain capable of change.
Selection must be defensible
Where a reduced number of similar roles will remain, employers should carefully define the selection pool and use objective, relevant criteria. Scoring should be supported by evidence and reviewed for inconsistencies. A technically neat spreadsheet will not protect an employer if the underlying criteria or evidence are weak.
Consider suitable alternative employment
A restructuring exercise should include a genuine search for alternatives to redundancy. New or different roles may be relevant, but employers should consider suitability, skills, terms, status and any applicable trial-period rights rather than assuming an employee must simply accept a materially different position.
Keep a clear decision trail
Good governance is particularly important after TUPE. Keep the business case, proposed structure, consultation records, selection methodology, scoring evidence, equality considerations, alternatives considered and reasons for final decisions. This helps demonstrate that the outcome followed a genuine process rather than being predetermined.
When specialist HR support helps
TUPE and redundancy can create overlapping legal, employee-relations and operational risks. The HFactor supports UK employers with TUPE planning, consultation, restructuring, selection processes, documentation and complex employee relations. If you are considering restructuring before or after a transfer, early HR input can help identify risk before decisions become difficult to reverse.
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