Delivering the In-house option Staffing Matters - TUPE TUPE basics - - PowerPoint PPT Presentation

Staffing Matters - TUPE

Delivering the In-house option

TUPE – basics

The method by which human resources are transferred from one employer to another… _________________________________________________________________________

Intention of TUPE

• Protection of
• f em

employment at t poi point of

• f transfer
• Automatic transfer to

to the ne new em employer with th contractual T’s & C’s protected

• Rig

Right to to ha have ser servic ice treated as as continuous

• Rig

Right to to be be informed abo about the transfer

• Rig

Right to be consulted about ‘measures’

• The Transfer of
• f Un

Undertakin ings s (P (Protectio ion of

• f Em

Employment) Reg egulations 2006 2006

• Cam

Came into for

• rce on
• n 6th

th Apr

pril l 2006 2006, an and rep eplaced th the pr previo ious 1981 1981 Reg egs

• Reg

egulatio ions up updated Ja January ry 2014 2014

When does a service provision change?:

In order to establish if you have a liability under TUPE Regulations you must establish if there is a service provision change… _______________________________________________________________________________

• A

A bu business ss or

• r un

undertaking or

• r part

part of

• f one
• ne is

s transferred fr from

• m one
• ne em

emplo loyer to to ano another as as a a goin

• ing concern
• Ser

Service pr provisio ion ch changes can ar aris ise be betw tween contractors s an and the clie clients who ho hir hire their ir ser servic ices. . Th The ch changes s involve;

• Co

Contracting out

• ut or
• r ou
• uts

tsourcing

• Re

Re-tenderin ing

• Con

Contracting in n or

• r insourcing
• TUP

UPE ap applies whe hen there ar are e ch changes in ser servic ice pr provisio ion

• Where there is

s a a transfer of

• f a

a contract to to per perform an an ac acti tivity the 2014 2014 pr provis ision requires the activity to be ‘fundamentally the same as the activities carried out pr previously ly

For a relevant transfer:

Once you are satisfied that there will be a service provision change, it needs to be established that there are employees who should transfer with the ‘activities’ …. _______________________________________________________________________________

• There mus

ust be be an an ec economic en entity whic hich retains s its ts identity

• There mus

ust be be a a ne new em employer

• There must be ‘an organised grouping of employees’ undertaking the

fu functio ion whic ich is s transferrin ing an and em employees mus ust t be be assig assigned to to the

• r
• rganised gr

groupin ing

• If no identifiable grouping of employees there maybe no ‘service provision change’
• Main purpose of the role ‘principal purpose’

Ceva Freight (UK) Ltd V Seawell Ltd (Court of Session, 21/06/13)

• Oil company decides to bring its logistics operation in-house
• One employee in outsourced warehouse devoted 100% of his time to

contract - did he transfer?

• No said Court of Session - ‘Organised Grouping’ means some degree
• f conscious organisation
• A number of employees worked on contract but were not organised

into a grouping. Single employee was part of that group but the principle purpose of the group was not the contract.

Data & Asset Transfer

For the receiving organisation to function on the day of transfer, certain data must be requested and obtained… _______________________________________________________________________________

Recommended data to request:

• employee liability information (

( 14 14 da days to to 28 28 da days)

• statement of
• f em

employment part particula lars

• polic

licies/ / ha handbook/ no not t dis discretionary ry be benefits

• rele

elevant coll

• llectiv

ive agr agreements s

• car

ar lea ease da data/ car ar loa

• ans/ ph

phone contracts / vehicle hir hire

• who

ho rec eceives PM PMI / de death gr grant/ be benefit its/ ch chil ild care vouchers

• dis

discipli linary ry, grie grievance , , ins nsurance cla claim ims s , , acc accid idents s , , leg egal l act actio ion (b (before the court or

• r em

employment trib ibunal)

Be aware:

Failure to supply the data required in a TUPE transfer may result in serious penalties…

• Transferor doe

does s no not t pr provid ide ac accurate or

• r suf

sufficient da data – you

• u may ap

apply to to em employment trib ibunal l for

• r:
• Such amount that is ‘just and equitable’ (having regards to the transferee’s

loss and any contractual terms)

• Compensation of £500 per employee in respect of whom the information

was not provided ( or was defective) or,

• Lesser sum if unjust or inequitable for minimum payment
• In

Information maybe indir irectly su supplied through a a third part party as as in n reas eassig ignment of

• f a

a contract.

Inform and Consult

A requirement of the regulations state that an employer must inform and consult once there is a reasonable prospect of a TUPE transfer… _______________________________________________________________________________

• Wit

ith ap appropriate Representatives s - TU’s or employee reps. If fewer than 10 employees – you are not required to facilitate elections of representatives for consultation purposes.

• Em

Employer (t (transferor) will ll inform an and consult ob

• bli

ligations, , ho however ne new em employer (t (transferee) will ll pr provid ide info on

• n ‘Measures’ and ET

ETO reas easons. s.

• Must In

Inform on

• n:
• Transfer will take place
• Legal, economic and social implications
• Must consult on
• n
• Measures
• ETO reasons
• Cos

Costl tly to to get t wrong

Consultation : Getting it wrong

If an employee or Trade Union are dissatisfied with the consultation undertaken they can apply for compensation… _______________________________________________________________________________

• The penalty for failing to comply with TUPE requirements around consultation =

13 weeks pay to each affected employee!

• The transferor and transferee are jointly and severally liable for any award of

compensation for failure to inform and consult

• Employees / representatives seeking redress for a breach of the information and

consultations can choose whether to take action against the transferor or the transferee or both.

Issues to consider:

There are essential activities that need to be completed when undertaking a TUPE to ensure that the organisation is not vulnerable to subsequent claims… _______________________________________________________________________________

• Warr

rrantie ies and ind indemnit itie ies:

• transferee seek

seek to to limit liability for

• r act

actions be before un undertaking to took pla place

• mutual indemnitie

ies – em employees s left be behind an and those who ho transferred

• inform an

and consult – join

• int & se

several lia iabili lity for

• r fail

ailure to to consult

• Da

Data Protectio ion (GD (GDPR)

• Leg

Legal res esponsibil ility to to kee eep informatio ion up up to to da date

• Agency work
• rkers – Agency wor
• rker Reg

egs 2010 2010 introduced chan changes to to TUPE In Info an and Con Consult req equirements

• Imm

Immig igration, Asylu ylum an and Nati tionali lity Act ct 2006 2006 (th (the act act)

So what can you change?

TUPE regulations offer significant protection to the employees involved in a transfer, however the receiving organisation still has freedom to make changes under certain circumstances… _______________________________________________________________________________

• Cha

Changes in n colle llective agr agreements pos post transfer – Dy Dynamic or

• r St

Static ap approach

• (Alemo Herron v Parkwood Leisure)
• Col

Colle lective Redundancy con

• nsultation be

before the transfer

• Reasons ‘connected with a transfer’– dismissal and changes to t’s & c’s
• the 2014 regulations removed the ‘ or a reason connected with it’

(This is a cosmetic change)

• Cha

Change of

• f Con

Contract if f it t wer ere der derived fr from a a colle llective agr agreement, an and

• more than 1 year after transfer
• employees no worse off overall
• ET

ETO Rea easo son – rele elevant to to dis dismiss ssal & ch changes to to ter terms s

• Economical, Technical or Organisational reasons
• ‘entailing changes in the workforce’
• dismissal due to work location is no longer automatically unfair

Pitfalls and considerations:

Whilst no two transfers are ever the same, there are similar issues and pitfalls that can be avoided if they are given consideration and are built into the project plan when commencing a transfer… _______________________________________________________________________________

• Challenge employers on transfer list
• Data given – request more supporting evidence
• Medical records- request employees to agree for them to transfer
• Right to work – Immigration, Asylum and Nationality Act 2006

£20,000 penalty per employee

• Pension – LGPS inform early
• Notify TU’s within your organisation plus existing staff
• TUPE trumps many other employment laws – keep protective umbrella

against Equal Pay Claims

Harmonisation:

Just don’t say it – its TABOO !!!… _______________________________________________________________________________

It would make life easier if we were to… I don’t want to have ‘Two tier contracts’ I want everyone to be the same Its harder to use different policies and T’s & C’s T A B O O Can we haromonise everyone

Hayley Hammick -

hayley.hammick@Southampton.gov.uk

Any Questions