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Buying a Business or Tendering to Provide a Service? Don’t Get Caught Out by TUPE.

This article was published in the November/December 2025 edition of London Business Matters.

When buying a business or taking over a service, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (‘TUPE’) is a key consideration. TUPE applies to all relevant transfers regardless of workforce size and importantly, cannot be contracted out of. TUPE protects employees from losing their jobs by automatically transferring their employment to the buyer on existing terms and liabilities.

Which employees transfer?

All employees ‘assigned’ to the business/service will automatically transfer. The assessment is rarely straightforward, particularly where roles are divided across clients or activities. While the percentage of time spent on the relevant work is a starting point, the law also considers contractual arrangements, job description, cost allocation and economics value.

ETO reasons and dismissals

Dismissals connected with the transfer are automatically unfair unless the employer can show an ‘economic, technical or organisational’ (ETO) reason ‘entailing changes in the workforce.’ Tribunals interpret ETO reasons narrowly however, genuine redundancies arising from a reduction in demand, technological change or efficiency-driven restructuring may fall within scope, provided they are also procedurally fair.

Restrictions on ‘harmonising’ terms

A buyer is unable to ‘harmonise’ terms and conditions of transferring staff with its existing workforce if the sole or principle reason is the transfer. This prohibition is not time-limited so that attempts, even years later, can be unlawful exposing the buyer to breach of contract or constructive dismissal claims. Even with a genuine ETO justification, the buyer must still obtain employees’ agreement.

Duty to inform and consult

Employees must be informed of the transfer and also any ‘measures.’ ‘Measures’ is construed widely and can include redundancies, relocations, changes to working practices or payroll. Where ‘measures’ are proposed, consultation is also required. Any procedural failures in this regard can result in protective awards of up to 13 weeks’ gross pay per affected employee.

Employee liability information (ELI)

The seller must provide specified ELI on transferring employees. Prudent buyers should carefully analyse this information as early as possible to understand the risks of assuming equal pay liabilities, enhanced redundancy rights or long-term sickness absences.

Conclusion

TUPE considerations require early legal advice and forensic due diligence. If considered late in the process, it can result in a lost opportunity to negotiate important indemnities leaving the buyer with liabilities which may outweigh the value of the deal itself.

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Quastels Acts for Albion & East on Their Disposal to Urban Pubs & Bars

Quastels were delighted to represent Albion & East on their disposal to Urban Pubs & Bars, further highlighting our leisure and hospitality team’s credentials.  

The transaction was led by corporate partner Adam Convisser and supported by Mark Cornelius, Jamie Crocker, Joshua Buxton and Rebecca Diogo.  

Albion & East is made up of four distinctive all-day venues: Teatro Hall in Ealing, Canova Hall in Brixton, Botanica Hall in Clapham Junction, and Serata Hall in the City of London.  Urban Pubs & Bars is London’s largest independent pub group.  

Calum Brazier commented: 

“We worked closely with Quastels both in the months leading up to the transaction and throughout to completion, and the support they provided was exceptional. They brought a genuinely rare blend of commercial understanding, clear communication and practical problem-solving — qualities that proved invaluable on a deal with multiple moving parts and structural complexities.

Adam and his team were always accessible, proactive and calm under pressure. On several occasions the deal required them to go above and beyond to keep everything progressing smoothly, and they consistently delivered with professionalism and good humour.

Their commitment, insight and commercial focus were key in helping us achieve a successful outcome, and we are hugely grateful for their efforts. We would happily recommend Quastels to anyone undertaking a transaction of this nature.” 

Congratulations to all the team at Albion & East and to Urban Pubs & Bars on a successful acquisition.

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A New Restraint in Family Farm Estoppel: Maile v Maile [2025] EWHC 2494 (Ch)

The High Court’s decision in Maile v Maile & Ors [2025] EWHC 2494 (Ch) marks a significant recalibration of how proprietary estoppel operates within family farm disputes. While on its face another failed claim by disappointed descendants, the case carries wider doctrinal implications. This case has the effect of tightening the law around promises and the reliance one has on them and is instead a reminder that there is no replacement for formal advice and legal frameworks to prevent problems further down the line.

In the case involving a multi-generational Devon farming family, the claimants, two grandsons, argued that their grandmother had promised them the family farm in return for their years of labour and loyalty. However, Mr Justice Michael Green rejected the claim, finding that the alleged assurances were too vague, that reliance was not causative, and that no sufficient detriment had been shown.

Limits on Intergenerational Estoppel

The claimants alleged that their grandmother had assured them they would inherit the family farm and that they had relied on those promises to their detriment. The court rejected the claim, holding that the alleged assurances were too vague, indirect, and insufficiently supported by evidence to give rise to an equitable claim.

This generational dimension is critical. Most successful proprietary estoppel cases in agricultural contexts, such as Guest v Guest [2024] AC 833, [2022] UKSC 27 and Winter v Winter [2023] EWHC 2393 (Ch), involve promises made by parents to children after decades of shared labour and reliance. Maile, by contrast, concerned a generational ‘skip’ – grandchildren claiming against a grandparent’s estate, where far less of their time had been devoted to the family farm.

The judgment shows the courts’ reluctance to extend equitable protection to promises that skip a generation. The further the claimant stands from the promiser, in kinship and in time, the higher the evidential threshold to show (i) a clear, unambiguous assurance, (ii) specific reliance casually linked to that assurance, and (iii) real detriment beyond ordinary familial engagement.

The judge noted that this was “not the usual case of a farmer’s child or children claiming that they gave up most of their working lives on the strength of promises made to them”, and the grandsons’ contributions, though genuine, did not approach the level of sacrifice seen in the classic authorities. Vague family conversations to the effect of “one day this will be yours” were viewed as affectionate hopes, not binding promises. Without clear evidence or documents showing a real intention to confer rights, the claim failed at the outset.

Maile signals a clear boundary in intergenerational estoppel. Courts are now likely to require that any promise beyond the immediate parent-child relationship be recorded, evidenced, and objectively referable to an intention to create legal obligations. From an estate planning perspective, this demands early formalisation of succession expectation through Wills, partnership agreements, or letters of wishes.

Commercial Structuring as De Facto ‘Contracting Out’ of Equity

A second, and arguably more influential, strand of the judgment concerns the interaction between proprietary estoppel and formal commercial arrangements. The claimants had entered a 2015 farming partnership with the deceased, which included an option to buy her share and a requirement to vacate the property within a year of her death. The court held that any equitable rights were overridden by these terms, echoing Horsford v Horsford [2020] EWHC 584 (Ch), where formal partnership structures displaced informal assurances.

Having entered into a detailed, independently advised agreement, the claimants were taken to have contracted out of reliance on any prior informal assurances. The partnership became the operative framework for succession, showing that the deceased had already formalised her intentions.

Reflecting a wider trend, the case signals that as family farming becomes more commercial, courts favour formal agreements over equitable claims. Maile confirms that equity will not readily intervene where succession has been legally structured, leaving proprietary estoppel to fill only genuine gaps in formal planning.

A New Equilibrium for Family Farm Equity

These developments mark a narrowing of equitable intervention in family farm estoppel, with the decision showing that equity will not rescue informal, intergenerational promises unsupported by clear evidence, especially where formal contractual arrangements are also in place. Two themes stand out: stricter legal standards, reflected in the higher evidential burden on grandchildren and other remote relatives to prove clear assurances and concrete reliance; and structural discipline, where formal partnerships or corporate arrangements are treated as the governing framework, effectively displacing informal expectations.

From an estate planning perspective, these themes underscore the need for proactive, well-documented succession strategies. It is vital that farming families formalise intentions early, ensure alignment between partnership, corporate, and testamentary arrangements, and record any family understandings with legal clarity.

To discuss your requirements and find out how we can help you, please get in touch.

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