Transfer of undertakings protection of employment (Tupe): The transfer of staff
The council may need to transfer parts of its service provision to other providers from time to time. This protocol has been developed to explain the provisions of Tupe and provide general guidance in managing transfers.
What is Tupe
The Transfer of Undertakings (Protection of Employment Regulations 1981 and 2006) are known as Tupe. These Regulations implement Rights Directive 1977.
The purpose of the regulations is to protect all employees in a transfer situation. It works by transferring staff to the new employer on their existing terms and conditions and preserving continuity of service. It is as if the new employer has always employed the people it has inherited.
The law on the application of Tupe is complex and when considering whether Tupe applies each case must be judged on its individual merits. However, the government advises that public sector employers should always try to ensure that their staff are covered by Tupe and even in cases where Tupe does not strictly apply the principles should still be followed.
The council is committed to working closely with potential employers, staff potentially affected by transfers and staff representatives to ensure that staff involved in the transfer of services are treated fairly and consistently.
- We will inform any potential employer that we will normally expect TUPE to apply in a transfer situation.
1. Disclosure of information
The Council will provide anonymised information on staff terms and conditions to bidders subject to the Council's confidentiality duty under the Data Protection Act.
In accordance with the Regulations personal data of transferring staff must be provided to the new employer no later than two weeks before the transfer date. This information will include:
- Name, age, continuous service details, pension details,
- Job title and main contractual terms including pay and leave entitlement
- Any outstanding loans
- Any disciplinary action (other than informal or spent warnings) or formal grievances instigated within the last two years
- Any legal claims brought in the last two years and any legal claims the Council has reasonable grounds to believe may be brought by an individual.
2. Who Transfers
2.1 TUPE applies to and protects all staff who are 'wholly or substantially employed in the undertaking' which is transferring and who are employed immediately before the transfer. This means that if a significant portion of a post involves work which is transferring the post holder is likely to transfer. This includes:
- Staff who are principally carrying out work which is transferring
- Staff on secondments if their substantive role is assigned to the service
- Staff on maternity leave and sick leave
- Staff employed by the Council on temporary contracts may transfer (although this will not apply when the reason for ending the contract is not related to the transfer)
Note: TUPE only applies to employees, it does not cover casual workers, the self employed or temporary workers employed through an employment agency.
2.2 When considering who will transfer the following factors will be taken into account.
- Percentage of time spent on the service that will transfer. Whilst there is not a conclusive percentage test as a general guide the Council will regard TUPE as applying to those staff who spend at least 50% of their time working in the service which is transferring.
- The type of work that you may be required to undertake under your contract of employment and job description.
- The value given by the employee to each part of the work
- How the cost of the work is allocated between different services.
2.3 Where TUPE does not apply and staff transfer by mutual agreement the Council will seek agreement from the new employer that the transfer is treated as though TUPE applies.
2.4 A proposed transfer list will be prepared by the relevant Head of Service. Staff affected and staff representatives will be notified in writing. The final transfer list will be agreed with the new employer two weeks before the transfer date.
2.5 In cases where the transferring work is divided amongst a number of staff it may be necessary to select who will transfer. The criteria for selection between staff assigned to the service will include:
- Percentage of work time spent on the service that will transfer
- Personal circumstances which may be relevant such as care of dependants, health or location
3. Appeals regarding the transfer list
To appeal against inclusion/exclusion from a transfer list you will need to write to your Head of Service within 7 working days of notification of your inclusion/exclusion setting out the reason for your appeal. (See appendix 1).
4. Objections to the transfer
If you are included on a transfer list (or remain on the transfer list following appeal) you have the right to object to the transfer. Your objection should be set out in writing to your Head of Service. However where TUPE applies and you decide not to transfer this is a resignation not a dismissal. In these circumstances redundancy compensation will not apply.
5. What transfers
Since your contract of employment transfers, apart from the change in identity of your employer, all terms and conditions that apply to you as an employee of the Council will also transfer. The only rights that do not transfer under TUPE are those concerning pensions.
Occupational pension scheme provisions do not transfer under TUPE. However Pensions are protected in a transfer situation under the Transfer of Employment (Pension Protection Regulations) 2005. This means that the new employer can either apply to the Local Government Pension Scheme to be an admitted body, and therefore provide continued membership or provide a 'broadly comparable' scheme. (Note: Neither the Council or transferring staff can demand that the new employer enters into an admission agreement for the LGPS).
The decision on whether a pension is broadly comparable is based on actuarial advice.:
Staff will be fully informed of the pension arrangements available from the new employer prior to the transfer.
- Communication and Consultation
Potential transfers and transfer arrangements can cause worry and anxiety. To minimise this we will work with the potential new employer to provide affected staff and UNISON representatives with as much relevant and up to date information as possible. Support and advice is also available from your HR officer.
6.1 We will provide you and staff representatives with the following information at the earliest practicable opportunity:
- That a transfer is to take place
- When, or approximately when, the transfer will take place
- The reasons for the transfer
- That your terms and conditions will transfer to the new employer
- The legal, social and economic implications of the transfer (ie. what differences, if any, it will make to you). For example, the name of the new employer and whether there is a need to relocate to different premises.
6.2 We will also consult staff representatives in good time on any measures the Council or new employer envisage taking as a result of the transfer with the aim of seeking agreement. (An example of a 'measure' could be whether a re-organisation of work is envisaged). We will consider and respond promptly to matters raised by staff representatives as a result of the consultation process.
6.3 We will work closely with the potential new employer to identify any measures which may affect you as a result of the transfer and assist the new employer to consult fully with your staff representatives.
6.4 Staff remaining with the Council
Staff who are not transferring but have colleagues who are transferring, or are working in a service which has staff transferring into it from another employer, may be affected by the transfer. For example there may be a need to restructure or change job roles. In these circumstances staff will be kept informed and consulted on any proposals which may affect them.
This process only applies to a complaint made by an member of staff who considers that they should be assigned to the TUPE list or consider they should not be assigned to the TUPE list.
This replaces the grievance procedure and allows for complaints to be made by an individual or group of staff if their circumstances are the same.
What to do
- Write to your Head of Service within 7 working days of being notified that you are assigned (or not assigned) to the TUPE list, explaining the grounds on which you dispute the decision.
- The Head of Service, advised by an HR officer will liaise with you and your representatives to determine the facts relevant to the transfer.
- In considering whether TUPE applies the Head of Service will determine whether you are employed in the part of the Council's service which is transferring by reference to the criteria set out in 3.2 of the protocol. In addition, where relevant, the following may be considered:
- Whether the percentage of time spent carrying out the work is variable eg. seasonal
- Whether it may be appropriate to apportion different weighting to elements of the work
- Whether there is responsibility for supervising others who are transferring, and if so the proportion of staff who are transferring
- The decision will be confirmed to you in writing normally within 7 working days, (exceptionally it may be necessary to extend the investigation beyond 7 days to allow a full review of your case, in these circumstances you will be kept informed of progress).
If you wish to appeal against the decision of your Head of Service you should write to the appropriate Corporate Director within 7 working days of the date of the decision setting out your grounds.
The Corporate Director, advised by an HR officer will review the Head of Service decision using the above criteria and will confirm the outcome in writing to you, normally within 7 working days. The appeal decision at stage 2 is final.
Note: you may be accompanied at meetings held in relation to your TUPE complaint by a colleague or union representative.