TUPE 2006 Nick Graham Assistant Head of Legal & Democratic Services [email_address] 27 November 2007

Standard TUPE definition – business transfer ‘ the transfer of an economic entity which retains its identity’ (Reg 3(1)(a)) Case law (Spijkers) says number of factors taken into account: Type of undertaking in question; Transfer of assets Value of intangible assets Whether staff taken on Transfer of customers Similarity of activities before and after transfer and duration of any interruption

‘ the transfer of an economic entity which retains its identity’ (Reg 3(1)(a))

Case law (Spijkers) says number of factors taken into account:

Type of undertaking in question;

Transfer of assets

Value of intangible assets

Whether staff taken on

Transfer of customers

Similarity of activities before and after transfer and duration of any interruption

New transfer definition: service provision change This would occur where: A service previously undertaken by the client is awarded to a contractor (outsourcing) Where a contract is assigned to a new customer on a subsequent re-tendering or Where a contract ends with the service being performed in house (insourcing)

This would occur where:

A service previously undertaken by the client is awarded to a contractor (outsourcing)

Where a contract is assigned to a new customer on a subsequent re-tendering or

Where a contract ends with the service being performed in house (insourcing)

Effect Terms and Conditions Continuity Automatic Transfer Liabilities (and Indemnities)

Terms and Conditions

Continuity

Automatic Transfer

Liabilities (and Indemnities)

Who Transfers? An organised grouping of resources or employees immediately employed before the transfer.

An organised grouping of resources or employees immediately employed before the transfer.

How to decide who transfers The amount of time spent on one part of the business or the other The amount of value given to each part by the employee The contractual terms showing what the employee was required to do How the costs to the employer of the employee’s services were allocated between the different businesses Which part of the business manages the employee

The amount of time spent on one part of the business or the other

The amount of value given to each part by the employee

The contractual terms showing what the employee was required to do

How the costs to the employer of the employee’s services were allocated between the different businesses

Which part of the business manages the employee

Issues for the public sector Statement of Practice on Staff Transfers in the Public Sector A Fair Deal for Staff Pensions Code of Practice on Workforce Matters in Local Authority Service Contracts The Best Value Authorities Staff Transfers (Pensions) Direction 2007

Statement of Practice on Staff Transfers in the Public Sector

A Fair Deal for Staff Pensions

Code of Practice on Workforce Matters in Local Authority Service Contracts

The Best Value Authorities Staff Transfers (Pensions) Direction 2007

Staff Problems Dismissals & Changes in Terms and Conditions Economic, Technical or Organisational Reasons

Dismissals & Changes in Terms and Conditions

Economic, Technical or Organisational Reasons

Employee Liability Information Identity of employees who will transfer Age Info in statement of employment particulars Any collective agreements Disciplinary actions in previous 2 years Any grievances in previous 2 years Any legal action taken

Identity of employees who will transfer

Age

Info in statement of employment particulars

Any collective agreements

Disciplinary actions in previous 2 years

Any grievances in previous 2 years

Any legal action taken

Information and Consultation Obligations Which include That the transfer is happening Consequences of transfer Any likely reorganisation Must involve appropriate employees

Which include

That the transfer is happening

Consequences of transfer

Any likely reorganisation

Must involve appropriate employees