TUPE Top Ten

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TUPE Top Ten

• HR for London

Peter Edwards, Senior Partner
15 December 2009
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TUPE Top Ten

• Purpose and effect of TUPE
• When does TUPE apply
• Super TUPE
• What is the effect of a TUPE transfer
• Who transfers under TUPE
• Unexpected TUPE transfers
• Fragmented services does TUPE still apply?
• Consultation and information obligations and
  pitfalls
• Changing TCs after transfer whats possible
  and how
• Pensions and TUPE

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1. What is TUPE and what is a TUPE Transfer?

• TUPE is an acronym for the Transfer of
  Undertakings (Protection of Employment)
  Regulations
• first passed in 1981 but
• overhauled in 2006
• Purpose to protect employees if the business in
  which they are employed changes hands
• Effect to move employees and any liabilities
  associated with them from the old employer to the
  new employer by operation of law

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2. When is there a TUPE Transfer?

• Transfer of Undertakings (Protection of
  Employment) Regulations 2006 introduced various
  changes
• service provision changes
• How can you identify a service provision change?
• Is there a transfer of a service to a different
  employer?
• Does service delivery obligation remain similar
  post-transfer?
• BUT what if the service delivery model is
  different
• post-transfer?

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3. SUPER TUPE

• Presumption in favour of TUPE transfer in or from
  the
• public sector
• Cabinet Office Statement of Practice on Staff
• Transfers in the Public Sector, January 2000

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4. What is the Effect of TUPE?

• Employees who are assigned to the services have
  their employment transferred to the new employer
  
• on their existing terms and conditions of
  employment and with all their existing employment
  rights and liabilities intact
• all employers rights, powers, duties and
  liabilities relating to the transferring
  employees transfer to the new employer
• The new employer steps into the shoes of the old
  employer and it is as though the employees
  contract of employment was always made with the
  new employer.

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5. Who Transfers?

• Employees who are assigned to the service
  immediately before the date of the transfer,
  other than on a temporary basis
• What is assigned?
• assigned or allocated to that particular part
• look at reality of work undertaken (not just
  contract)
• percentage test?
• What is on a temporary basis?
• do not transfer if assigned on a temporary basis
• bank staff, secondees?

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6. Unexpected TUPE transfers

• The Group of one. Hunt v Storm Communications
  Ltd ET
• An organised grouping of employees can be one
  employee
• The Supporting Group who became redundant
• The employees of another employer

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7. What Happens when the Service is Fragmented or
Divided after transfer?

• Kimberley Group v Hambley Angel 2 companies
• had taken over a service contract previously
• performed by 1 company
• Tribunal decision liability for the
  transferring employees should be split between 2
  new providers
• EAT decision establish which company had,
  following the service provision change, taken up
  the activities to which each claimant was
  assigned. In this case, one provider had taken
  up the vast majority of the activities previously
  performed. Therefore all employees transferred
  to that provider.

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8. Consultation and Information Obligations

• TUPE 2006 introduced new and enhanced
  consultation obligations
• Obligations of the current employer to the
  employees
• to inform / consult employee representatives
• must inform affected employees of facts of
  transfer and consult on measures that old and new
  employers intend to take
• must inform / consult as soon as possible
• Requirement to notify new employer in writing of
• identity of employees who is attached to the
  transfer?
• associated rights and liabilities that will pass
  to new employer
• any changes in that information
• Requirement of new employer to notify in writing
  of any measures that will be taken following
  transfer

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9. Change of T Cs

• Changes connected with the transfer generally not
  valid
• Reason unconnected with the transfer e.g. later
  restructuring of service provision
• Transfer related changes valid where ETO reason
  connected with the transfer entailing changes in
  the workforce i.e. reduced staff numbers or
  different staff requirements

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10. Occupational Pensions

• Definition under TUPE
• effect for NHS benefits
• Pensions Act 2004 requirements
• limited pension protection
• mirrored in the Code of Practice on Two Tier
  Workforce (2005)
• Cabinet Office Statement on Staff Transfers in
  the Public Sector (2007)
• broadly comparable pension provision for future
  service
• bulk transfer agreement for accrued service