In a TUPE situation, how long do the transferring employees have to be in situ? Is there a minimum period of time a transferee has to be on site to qualify under TUPE?

Regulation 4 of TUPE provides that the automatic transfer principle applies to anyone employed by the transferor and assigned to the organised grouping of resources or employees "immediately before" the transfer.

Assuming that in this case there is no issue in respect to whether the employee is actually assigned to the undertaking, the question which therefore arises is whether the employee was assigned to the transferred undertaking at the time of the transfer (or “immediately before”).

The term “immediately before” has been strictly and literally interpreted by the courts with the consequence that the protection of Regulation 4 applies only to employees still employed by the transferor at