TUPE

Christine Joy

Principal HR Manager

16 February 2011

• What is a transfer of undertaking?• Situations where TUPE applies/doesn’t

apply• Managing a TUPE situation• The ETO reason• Potential implications for consortia• References and links

What is TUPE?

• Transfer of Undertakings (Protection of Employment) Regulations 2006 applies to

– Business transfers– Service provision changes

Some transfers will be both of these.

• Cabinet Office Statement of Practice (COSOP)

Situations where TUPE applies

• Mergers• Sales of businesses by sale of assets• Change of licensee or franchisee• Gift of business through execution of a will• Contracting out of services• Changing contractors• Where all or part of a sole trader’s

business/partnership is sold or otherwise transferred

Where TUPE doesn’t apply

• Transfers by share take over

• Transfers of assets only

• Transfers of a contract to provide goods or services where this does not involve the transfer of a business/part of a business

• Supply of goods for a client’s use

• Transfers outside of the UK

Managing a TUPE situation

• All employees employed in the organisation that is to transfer are covered by the law.

• Consultation and notification

• Pensions

• Information

The ETO reason

• The economic, technical or organisational (ETO) reason

• One of the few legitimate factors for the basis of a refusal to take on a transferor’s workforce by the prospective transferee

• Transferee would be liable for claims

• Employees must have one years service to accrue employment protection rights

Potential implications for consortia

• TUPE is complex – seek legal advice at the earliest possible stage

• You cannot prevent TUPE applying• You can negotiate – particularly important

around how to deal with liabilities that may exist – include “indemnities” in the agreement

• Assignment of PCT staff to consortia during transition

Links and References

• http://www.cipd.co.uk/subjects/emplaw/tupe/tupe.htm CIPD Fact Sheet on TUPE

• Cabinet Office Statement of Practice (COSOP) Staff Transfers in the Public Sector revised November 2007

• http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/documents/digitalasset/dh_122755.pdf - Annex to 15 December letter – Update on HR Strategy

• http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_123178.pdf Appendix A - Influencing your own future

• http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/@ps/documents/digitalasset/dh_123177.pdf Appendix B - Frequently Asked Questions