Presentation explaining the TUPE process - employees rights when they are transferred from one organisation to another

1. Demystifying TUPE
Prepared for Locality members by
Luke Watkeys, Senior Consultant
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2. About Real People
• A social enterprise developed by the
homelessness charity St. Mungo’s Broadway.
• A highly qualified and award-winning team
specialising in providing people management
advice, training and support to small and medium
sized charities and community organisations.
• All Locality members are entitled to two-free
hours of remote expert HR support per annum

3. Before we start…
• Come up with a fact, statement and/or term
to do with TUPE and put it in the question box
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4. TUPE: what is it?
• Transfer of Undertakings (Protection of
Employment) Regulations 2006:
– “Transfer of an economic entity (organised grouping
of resources) that retains its identity”
• In our sector it is most likely to occur with
mergers and ‘service provision changes’
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Current Provider
(Transferor)
New Provider
(Transferee)

5. Does TUPE apply?
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Commissioner
Provider
Secondary
Provider
OutsourcingInsourcing
Second-generation outsourcing

6. Does TUPE apply?
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• Questions to consider:
– Are the services the same? TUPE Regulations have been
amended from January 2014 to state that, for there to be
a service provision change under TUPE, the activities
carried out by the new provider after the transfer must be
"fundamentally the same" as the activities carried out by
the previous provider
– Will the service provided become fragmented?
– Are the employees assigned to the transferring service?
• Always get legal advice if you or the other organisation
dispute that TUPE applies!

7. The basics
1. If TUPE applies, all relevant
employees transfer to the new
organisation with their existing terms
and conditions and continuous
service
2. Joint duty to consult
3. Dismissals and changes relating to
the transfer will be void (unless for
an ETO reason entailing changes to
the workforce)
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8. Straight after award of contract
• Make contact with relevant
people at current provider
• Send over employee due
diligence forms and request
copies of employee contracts
• Establish whether there are
representatives and if not
ensure that the current
provider will arrange this
• Send a notification letter to
representatives and employees
via current provider
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9. Duty to consult
• Joint duty for transferor and transferee
• Conduct a full and meaningful consultation at the
earliest practicable time with representatives
• If there are no trade union or employee
representatives, then representatives must be
elected. The current employer must facilitate the
election process.
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10. Duty to consult
• Both transferor and transferee must provide the following
information to the representatives:
– that a transfer is to take place
– the reason for the transfer and when it is expected to take place
– the implications for the employees
– the measures (i.e. changes) that the employer expects to take in
relation to the employees
– the measures (i.e. changes) that the new employer expects to
take in relation to the employees
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11. Consultation meetings
• Go though letters and explain all points
• Answer any questions honestly
• Follow up with letters summarising the
meeting and answering any outstanding
queries
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12. Duty to consult
• The cost of getting it wrong…
– 13 weeks actual pay per employee
– Joint liability between transferor and transferee
– The purpose of the award is punitive, i.e. to
ensure the employer complies with its obligations,
rather than compensatory. Case law has
established that a complete failure to comply will
mean that the maximum award will be made.
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13. Making changes
• You can make changes for the following ETO
reasons:
– Economic: The profitability or market
performance of the new employer’s business
– Technical: The nature of the equipment or
production processes which the new
employer operates
– Organisational: The management or
organisational structure of the new
employer’s business
• Employer has to show that the ETO reason
entails changes in the workforce. This means
that there must be changes in:
– The actual numbers employed in the
workforce; or
– The functions performed by employees.
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14. Making changes
• In broad terms:
– Reorganising is generally
acceptable so long as you
consider pooling others who
weren’t part of the TUPE’d
group, and offer alternative
roles to those affected
– Any other changes must also
be a change to the wider
workforce for business reasons
and not linked to TUPE.
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15. Making changes
• Any changes must be
genuine!
• Occupational pensions
are the exception
• Get your business case on
paper and seek legal
advice before
implementing
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16. Poll: are these acceptable?
• Salary: £25k
– You want to make it £22k to fit with other staff and because you
went in at a low cost
• Hours: 35 hours per week, 9am - 5pm
– You want to make them 37.5 hours a week on a 24/7 rota to fit
with the rota which meets the needs of the service as requested
by the local authority
• Pay day: 20th of the Month
– You want to make it 25th of the month to fit with the rest of the
organisation
• Private health insurance
– You don’t want to offer this as you think it is a ridiculous benefit
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17. Making changes
• The cost of getting it wrong…
– Breach of contract
– Unauthorised deduction of wages
– Constructive or unfair dismissal
• Compensatory award of maximum of £76,574 and 52
weeks' pay (whichever is the lower), with the maximum
‘week's pay’ set at £464
• Basic award for automatically unfair dismissals at
£5,676.
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18. “What if I refuse?”
• Employees who refuse a
transfer are effectively
resigning
• However, continue to
consult with them until you
have this confirmed from
them in writing and you
know that they understand
the implications of their
actions
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19. Day of transfer and beyond
• All the personnel files should be
sent from transferor 28 days before
• Transferee to go through files with
a fine toothed comb, noting current
warnings / sickness triggers /
performance issues
• Meet with all staff, inducting them
and conducting a thorough training
needs analysis
• Go over key policies:
– Sickness
– Code of Conduct
– Disciplinary
– Grievance
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20. Cultural assimilation
• For cultural assimilation, it is imperative you
get in early. Your organisation culture is
defined in practices:
– Availability of management
– Policies
– Expectations
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21. Crack down
• Pick up on all issues
which don’t fit
positively with your
culture immediately.
– Zero tolerance on
misconduct
– Address and monitor
performance concerns
– Deal with existing
sickness issues
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22. Make the deal explicit
• Think about what can they
expect from you as an employer,
and what you expect of them:
– Development
– Communication and consultation
– Working and management style
– Diversity and equal opportunities
– Fairness
– Work life balance
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23. Make the deal explicit
• Full commitment to give your best
• Being fully committed to
understanding the needs of your
customers / clients
• Contributing to continuous
improvement
• Using your initiative and judgement
• Following our procedures and code
of conduct
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24. Thanks- need further support?
• All Locality members are entitled to two-free
hours of remote expert HR support per annum
• Visit our website:
– www.broadwaysrealpeople.com
• Email me at:
– luke.watkeys@realpeoplehr.co.uk
• Call us on:
– 0207 710 0626
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