Wendy Blake Ranken, HR Consultant

wendy@blakeranken.clara.co.uk

“Transfer of Undertakings (Protection of Employment) regulations 2006” as

amended by the “Collective redundancies and Transfer of Undertakings (Protection of Employment) (Amendment)

regulations 2014”

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Overview of TUPE, in particular the 2014 changes

Practical TUPE issues, including pensions

Managing the change – the people side

Discussion – ‘TUPE issues we have known’ – sharing learning

Discussion – topic for next meeting

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Governs staff rights when a business or a service changes owners

Terms and conditions protected

Some protection against dismissal

NB union recognition only transfers where the business unit keeps its identity and is not merged into the incoming employer’s wider organisation

Changed in 2006 and again in 2014 (2014 changes apply to England, Wales and Scotland but don’t extend to Northern Ireland)

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The 2014 changes

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1. Service provision changes

2. Employee liability information

3. Change in workplace location

4. Redundancy/TUPE consultation

5. Post-transfer changes to terms and conditions

6. Protection against dismissal

7. ‘Static’ approach to collective agreements

8. Micro businesses

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The service must remain ‘fundamentally the same

post-transfer’

No practical impact – this was case law in any case

Also still the case that there must be the following must exist immediately before the transfer: ◦ an organised grouping of employees ◦ Transferring employees should be assigned to the group ◦ the activities should not become overly fragmented

(Framework Agreements?)

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Information to be provided to transferee at least 28 days (previously 14 days) before the transfer

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Dismissals are no longer automatically unfair because of a change in the workplace location – may now be a fair ‘ETO’ reason

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Collective redundancy consultation can now be undertaken pre-transfer

Will apply where 20 or more employees proposed as redundant (30 or 45 day consultation period)

Complex rules

Transferor must agree to pre-transfer consultation

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Changes now only void if the ‘sole or principal reason’ for the change is the transfer itself, rather than for a ‘reason connected to the transfer’

Exemption remains: when an economic, technical or organisational reason entailing changes in the workforce (“ETO reason”) exists

A change will now also be permitted if it is because of transfer, but terms of contract permit employer to make the change

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Transferees now able to implement valid changes to terms and conditions of employment which have been incorporated into individual employment contracts via a collective agreement provided that: ◦ the variation takes effect more than one year after

the date of the transfer; and ◦ following the variation, the rights and obligations in

the employee’s contract when considered together are no less favourable than those which previously applied

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A dismissal only automatically unfair (and liability passes to the transferee) if ‘sole or principal reason’ for the dismissal is the transfer itself, rather than ‘a reason connected to the transfer’

Exemption remains – if dismissal is for an ETO reason

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Only terms in existence at date of transfer binding on transferee

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If 10 employees or less and no TU – can inform and consult directly with employees

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Practical TUPE issues

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Transferor must give the transferee written

information about transferring employees (in particular details of t&cs)

At least 28 days before transfer Once transferee has this information, it should

respond with any ‘measures’ Transferor can then inform reps and staff about

the ‘measures’ Consultation about any measures, ‘with a view to

seeking agreement’ Failure to inform and consult – up to 13 weeks’

pay per employee

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Does TUPE actually apply?

What if our service is being transferred out to multiple providers, eg under a Framework Agreement?

Will the new provider accept our staff?

Providing due diligence information

What ‘measures’ does the new provider envisage?

Informing and consulting with our staff via reps

Is any remaining staff member at risk of redundancy as a result of the transfer out?

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How many staff are transferring in? Are they all eligible to transfer? What are their terms and conditions?

What liabilities are we inheiriting? Pensions Does the funding cover the liabilities? What is the impact on our existing staff? How will we inform and consult with reps of

our existing staff? Will we need to restructure?

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Transferee must assess employees on date of transfer and auto-enrol them if eligible

Occupational pensions do not transfer, but transferee must offer a pension which is:

A final salary or career average pension; or

A defined benefit scheme that provides same benefits as old employer’s scheme; or

A defined contribution scheme to which new employer must contribute either: ◦ A contribution to match the employee’s contributions

(up to 6%); or ◦ A contribution equal to transferor’s contribution

immediately pre-transfer

Beware also contractual promises

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Managing the change – the people side

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Feelings of staff – change management

Electing representatives

Training representatives

Impact on existing staff

Direct comms with employees – FAQs

Enabling transferring employees to meet new employer and see new workplace

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What is TUPE? What are ‘measures’? What are the consultation requirements? What are our legal rights as reps? What might the benefits be of representation? What is the role of the rep? What might staff want from us? What are the qualities of a good rep? How are we going to organise ourselves? What information will we receive? What sorts of questions might staff have? How many meetings will we have with staff? How will we communicate with staff between

meetings? How will we liaise with managers eg developing Q&As

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‘Handling TUPE transfers – the Acas Guide’

(includes 2014 changes)

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Discussion – TUPE issues we have known

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Discussion – future topics

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