If an employee spends 50 per cent of their time on a contract, can I choose whether they transfer under TUPE or not? Employment Law for Employers
It is a common misconception to think that employees will actually split their time 50:50 and that this means TUPE definitely does or does not apply.
The percentage of their time is only a starting point. In reality, you need to look at whether those staff were grouped for the purpose of working for that client or on that contract, or is it just a coincidence that they do some work for the contract that is ending.
To know if TUPE does apply, the employer must consider exactly what is happening on the ground, regardless of the terms of the initial contract.