The 5 TUPE Myths That FM Managers Keep Getting Wrong

Every year, facilities management companies walk into mobilisations carrying legal time bombs. Tribunal claims. Emergency legal fees. Clients left furious because a contract handover went sideways before the ink was dry. And almost every time, the root cause is the same: someone believed a TUPE myth.

These myths aren't spread by bad people. They spread because TUPE law is genuinely complex, because people learn from peers who learned from other peers, and because organisations have become dangerously dependent on consultants who themselves don't always get it right. The result? FM managers making decisions in mobilisation — one of the most pressured phases in contract delivery — based on half-truths that have no legal foundation.

Here are the five you need to stop believing now.

Myth 1: "TUPE Doesn't Apply Because We Changed the Scope of Services"

This one comes up constantly at contract transitions. The argument goes: the new contract includes extra services, or cuts some out, so the activities are different enough that TUPE doesn't apply. It feels logical. It's wrong.

Under Regulation 3 of the Transfer of Undertakings (Protection of Employment) Regulations 2006, the relevant test for a Service Provision Change (SPC) is whether the activities carried out after the transfer are fundamentally the same as those carried out before. Not identical — fundamentally the same. Adding or removing peripheral tasks, rebranding the service package, restructuring reporting lines: none of these automatically take you outside TUPE.

Courts and employment tribunals have consistently held that FM contractors cannot engineer their way out of a TUPE obligation by tweaking the scope. If the core activity — say, hard FM maintenance, or cleaning, or security — is substantially unchanged, the transferring employees are protected. Full stop.

The GOV.UK TUPE guide is clear: the SPC test looks at the organised grouping of employees and whether those employees were principally assigned to that service. Scope changes are a red herring.

Myth 2: "We Can Harmonise T&Cs After Transfer to Match Our Existing Workforce"

This is the myth that gets FM companies into the most expensive trouble. The logic sounds sensible: once the employees are with us, we bring everyone onto our standard contracts. One workforce, one set of terms. Clean and simple.

Clean and simple, and entirely void.

The TUPE Regulations are explicit. Any variation to the terms and conditions of a transferred employee that is made for a reason connected to the transfer itself — where the transfer is the sole or principal reason — is void. It doesn't matter whether the employee agrees to it. It doesn't matter whether it's an improvement on their original terms. The variation has no legal effect.

There is one route through: an Economic, Technical, or Organisational (ETO) reason entailing changes in the workforce. But an ETO reason must be genuine, must go beyond simply wanting harmonisation, and must relate to the needs of the business — not the convenience of the transition. CIPD HR-inform case law documents multiple tribunal decisions where FM contractors fell foul of this exactly.

If your mobilisation plan includes a Day 1 "harmonisation" conversation, stop. Get legal advice before you have it.

Myth 3: "If an Employee Objects to the Transfer, We Don't Have to Take Them On"

This misunderstands the legal position entirely, and it creates a significant risk of coercion claims.

Under TUPE, an employee has the right to object to a transfer. If they do, they are not dismissed — their employment simply terminates by operation of law. But here's what the law is equally clear on: neither the transferor nor the transferee can put pressure on an employee to object. Doing so could constitute an automatic unfair dismissal claim, even if the employee technically "chose" to object.

As the RFM Group's FM TUPE guidance notes, TUPE objections in FM transitions are a genuine minefield. An employee who objects because they weren't given accurate information about the new employer — or because they were subtly discouraged from transferring — may have a valid claim regardless of whether they signed any paperwork.

The transferee also cannot simply assume that an objecting employee is "off the list." Depending on the reason for the objection, constructive dismissal arguments can follow. Know the rules before you have any conversations about objection.

Myth 4: "TUPE Only Protects the Employees Who Transfer — Not Those Left Behind"

This myth is probably the most operationally dangerous, because it leads mobilisation teams to forget about a whole category of people who have legal rights in the process.

Regulation 13 of the TUPE Regulations 2006 requires both the transferor and the transferee to inform and consult with all affected employees — which includes employees who are staying with the outgoing provider and are affected by the transfer. This isn't a technicality. It's a substantive legal requirement.

Failure to consult properly is one of the most common sources of TUPE-related tribunal claims in FM, and it often catches outgoing providers off guard. They've handed the contract over, they're dealing with mobilisation on other projects, and suddenly they're facing a protective award claim from employees they didn't transfer and didn't consult.

As the DCS Group FM TUPE guide explains, the consultation obligation extends to measures that will be taken in relation to any affected employee — not just those transferring. If you're the outgoing provider, your obligations don't end when you hand over the ELI.

Myth 5: "We Can Sort TUPE After Mobilisation — There's Too Much Else Going On"

This is not a myth about the law. It's a myth about project management — and it's the one that turns all the other myths into live claims.

TUPE is not an HR admin task you schedule for Week 3 of mobilisation. It is a mobilisation workstream. It runs in parallel with asset surveys, subcontractor novation, IT setup, and everything else on your programme. If it slips, everything else is affected.

Late TUPE means an incomplete Employee Liability Information (ELI) pack. Incomplete ELI means you cannot accurately cost your inherited workforce. You cannot budget for terms you haven't seen, for shift patterns you don't know, for contractual entitlements that haven't been disclosed. That's not a Day 1 admin problem — it's a financial exposure you've baked into the contract before you've delivered a single service hour.

And behind the cost risk sits the tribunal risk. Failing to meet TUPE information and consultation obligations carries a protective award of up to 13 weeks' pay per affected employee. On a large FM contract with 50+ transferring employees, that adds up fast.

TUPE done early is risk managed. TUPE done late is a claim waiting to happen.

The Cost of Getting It Wrong

A single tribunal claim costs an average of £8,500 in legal fees to defend — before any award. A failed mobilisation that forces a contract renegotiation can cost multiples of that in management time, client relationship damage, and retendering exposure. And unlike many commercial risks, TUPE risk is almost entirely avoidable.

The law is complex, but it's not unknowable. The myths persist because people haven't taken the time to learn what the regulations actually say.

Fix It: MCFM Academy TUPE Courses

If you or your team are carrying any of these myths into your next mobilisation, now is the time to address it.

Mastering TUPE: Process and Compensation Strategies — £45, 1.5 hours. Covers the full TUPE process, compensation frameworks, and practical application in FM contract transitions. Designed for mobilisation leads and FM directors who need to own the process, not just delegate it.

MCFM00132: Mobilising Human Resources and TUPE in Facilities Management — Built specifically for FM practitioners. Takes you through the human resources dimension of FM mobilisation with TUPE compliance at the centre.

The cost of these courses is less than one hour of employment law advice. The cost of getting TUPE wrong isn't.