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Tupe 2006 & the Public Sector
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Tupe 2006 & the Public Sector

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  • 1. TUPE 2006 Nick Graham Assistant Head of Legal & Democratic Services [email_address] 27 November 2007
  • 2. 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
  • 3. 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)
  • 4. Effect
    • Terms and Conditions
    • Continuity
    • Automatic Transfer
    • Liabilities (and Indemnities)
  • 5. Who Transfers?
    • An organised grouping of resources or employees immediately employed before the transfer.
  • 6. 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
  • 7. 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
  • 8. Staff Problems
    • Dismissals & Changes in Terms and Conditions
    • Economic, Technical or Organisational Reasons
  • 9. 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
  • 10. Information and Consultation Obligations
    • Which include
    • That the transfer is happening
    • Consequences of transfer
    • Any likely reorganisation
    • Must involve appropriate employees