TUPE question

[hairytale]

if two identical companies merge, and there is one person doing a role in one of them which would need to be done in the new organization, must the role be TUPEd?

The only difference in the role is that it would cover a bigger area and manage a merged (ie bigger) team.

TUPE does not mean the employer cannot make changes. It means that an employee cannot be dismissed or have their terms and conditions changed in connection with the transfer unless there is an economic, technical or organisational (ETO) reason to do so. In the situation you describe the merged company could argue that they have an ETO reason for making one of the two people redundant or moving them to a different role in that they don't need two people fulfilling this role.

Except there's only one person in the role at present- there's a vacancy in the other company for the role.

Except there's only one person in the role at present- there's a vacancy in the other company for the role.

Sorry, I misread. I thought you said there was one person in each company fulfilling this role. But the basics are the same - an employee cannot have his or her terms and conditions changed in connection with the transfer unless there is an ETO reason to do so. The merged company is entitled to decide that they need two people to carry out this role. Equally they could decide to re-organise in a way that makes this role redundant. Provided they have an adequate ETO justification for this they are not in breach of TUPE.

So ... If there is still a clear need for the role - doing the same role but for a newly merged company, the person in post should be transferred into the new role as the role is vacant in one of the two companies?

Assuming the existing role continues in the merged company the existing job holder retains the job. However, they don't have to expand his role to cover the vacancy in the other company. And if they decide they have a good ETO justification for creating a merged role they don't necessarily have to give it to the current job holder.