MAYFIELD SCHOOL Policy: TUPE Guidelines for Managers...

May 2011

MAYFIELD SCHOOL

Policy: TUPE Guidelines for Managers

Author: Torbay Human Resources (April 2011)

Governors Committee: Leadership

Date adopted: May 2011 November 2015

Next review: Autumn 2019

May 2011 2

TRANSFER OF UNDERTAKINGS (PROTECTION OF EMPLOYMENT) REGULATIONS (TUPE) - GUIDELINES

March 2011

Purpose Page1

What is TUPE – Overview of regulations Page2

Definition Page2

Employee Rights Page2

Where does TUPE apply? Page2

Where does TUPE not apply? Page3

Practical Implications for Managers Page3

Roles and responsibilities Page3

Protocol when outsourcing a function or a service Page4

Consideration of the ‘Service’ specification Page5

Planning staff consultation Page8

Communication mechanisms Page8

Meeting with the successful or preferred supplier Page 9

Information to be provided by the transferee Page9

Disclosure of ‘employee liability information’ Page10

Law relating to employee liability information Page10

Glossary of terms Page12

Further information sources Page13

Policy Feedback Page13

History of changes Page13

Purpose of TUPE Manager Guidelines

The purpose of these guidelines is to inform managers of the legislation that covers a situation when a

service maybe brought in or outsourced from the school and give them a format to follow to ensure that

any transfer of employees is done in a lawful and reasonable manner.

This document can be made available in other languages, on tape, in Braille, large print and in other formats. For more information please contact 01803 207366

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Scope

These guidelines will apply to all Council employees including those working within our schools. Governing

bodies and head teachers of foundation and voluntary aided schools within Torbay will be encouraged to

follow these guidelines for their employees.

Equality Statement

These guidelines apply equally to all Council employees, as above, regardless of their age, disability, sex,

race, religion or belief, sexual orientation, marriage or civil partnership, pregnancy or maternity or gender

reassignment status. Care will be taken to ensure that no traditionally excluded groups are adversely

impacted in implementing this policy.

What is TUPE? (Overview of the 2006 regulations)

TUPE describes when a work or business changes hands from one employer to another. The regulations

are designed to protect the rights of employees so they keep their existing rights such as annual leave

entitlement, continuous service and salary etc.

Definition

The legal definition is the Transfer of Undertakings (Protection of Employment) Regulations 2006 (referred

to in these guidelines as TUPE 2006) and is now the main piece of legislation governing the transfer of an

undertaking, or part of one, to another employer or business. The regulations are designed to protect the

rights of employees in a transfer situation enabling them to enjoy the same formal terms and conditions,

with continuity of employment.. TUPE 2006 entirely replaces the Transfer of Undertakings (Protection of

Employment) Regulations 1981.

Employee rights

The effect of the TUPE Regulations is to preserve the continuity of employment and the terms and

conditions of employees who are transferred to a new employer when a relevant transfer takes place.

This means that employees employed by the previous employer (the ‘transferor’) when the transfer takes

effect automatically become employees of the new employer (the’transfree’) on the same terms and

conditions (except for certain occupational pension rights). The TUPE regulations provide limited

opportunities for the transferee or transferor to vary with the agreement of the employee concerned, the

terms and conditions of employment contracts. Harmonisation of terms and conditions of employment is

not lawful.



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Where does TUPE apply?

By way of giving broad guidance TUPE has been found to apply to:

Mergers

Sales of a business or franchise

The gift of a business through the execution of a will

Contracting out of services

Changing Contractors

Where all or part of a sole trader’s business or partnership is sold or otherwise transferred.

TUPE 2006 applies to ‘relevant transfers’. A ‘relevant transfer’ can occur when:

A business, undertaking (or part of one) is transferred from one employer to another as a going

concern. This is known as a business transfer.

A client engages a contractor to carry out work on its behalf, or where it reassigns such a contract

including bringing the work back in house. This is known as a service provision change.

The two categories are not mutually exclusive and it is possible that a transfer will fall into both categories.

It is sometimes unclear as to whether TUPE applies, particularly where employees work on a contract for

part of their working time. Points to look at are:

Whether the employees are assigned to the organisational framework of the transferring service

The amount of time spent in the transferred undertaking and the rest of the business

The amount of value given to each part by the employee

The job description and what the employee is contractually required to do

How the cost of the employee’s services are allocated between different parts of the business

Where TUPE does not apply?

Transfers by share take-over

Transfers of assets only (for example, the sale of equipment alone would not be covered, but the sale

of a going concern including equipment would be covered.

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

business or part of a business.

The supplies of goods for clients use, for example, supplying food to a client to sell in its staff canteen,

rather than a situation where the contractor runs the canteen for the client.

Transfers of undertakings situated outside the United Kingdom (although these maybe covered by the

regulations of other European Union member states).




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Practical Implications for Managers

Roles and responsibilities

Senior Managers eg Headteacher or Bursar (of the service being transferred)

Lead the transfer process on behalf of the School where the School is either the transferor or the

transferee.

Take advice from Human Resources on the appropriate actions to take.

Ensure that staff and trade unions are informed about the proposals for transfer.

Ensure consultation with staff and trade unions takes place.

Ensure that timely and accurate information is provided to the transferee about transferring staff

(Employee Liability Information).

Be responsible and take responsibility for compliance with the TUPE regulations and all statutory

regulations and guidance governing transfers of staff.

Senior Managers eg Headteacher or Bursar – Transferee (where a service is being transferred in)

When a service is being transferred in, the current employer is responsible for sharing information

regarding the transfer process. However, to ensure a smooth and welcome integration into the Council or

School, Senior Managers are advised to:

Lead the transfer process for the integration of the service transferring in

Take advice from Human Resources on the appropriate actions particularly in terms of consultation and

comparison of terms and conditions of new staff

Ensure that staff in the organisation who may be affected by new staff moving in, are informed and

consulted about the proposed transfer

Ensure that consultation with trade unions takes place

Take over the contracts of the new employees and arrange to meet with individuals to discuss concerns

about transfer, arrange a site visit etc.

Be responsible and take responsibility for compliance with the TUPE regulations and all statutory

regulations and guidance governing transfers of staff.

Complete paperwork for Human Resources for new employees and ensure Payroll details are correct

Arrange welcome letter and induction as necessary

Human Resources






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Provide advice to senior managers/Schools about how to manage the staff transfer process.

Advise senior managers on the process when the School is the transferee.

Provide payroll information on affected staff as required within the timescales required in the

regulations.

Provide the required information on pension matters within the agreed timescale.

Employees

Ensure that all personal information held by the current employer (transferor) is correct.

Protocol when outsourcing a function or a service

To ensure that legal requirements and best practice guidelines are adhered to, it is recommended that

managers follow a procedure that covers the whole TUPE management process from the initial decision to

outsourcing and finally to the transfer of employees. It is recommended that this is developed for the

management of each individual TUPE exercise. Once the decision has been taken to find a partner or to

outsource a function, Human Resources will provide support to Senior Managers/School to develop on how

best to develop this protocol. The following table is designed to assist in the development of the process.

Does TUPE apply?

Consider the law – is there an economic

entity that will retain its identity after the

transfer?

Consider the Cabinet Office Statement of

practice :-

www.civilservice.gov.uk/publications/pdf/staf

ftransfers.pdf

What posts will transfer? Which employees are assigned to these

posts?

What assets will transfer? Will any assets, buildings, vehicles, and

office equipment transfer?

What other staff may be affected by the

transfer?

Consider staff elsewhere in the organisation,

for instance will there be a reduction in the

need for central services, administration

support?etc

Are any employees at risk of redundancy? If so, who will be responsible for this part of

the process?






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May 2011 7

Have you begun consultation?

Refer to the school’s Redundancy policy.

Consideration of the Service Specification

Check the Code of Practice

on Workforce Matters in

Local Government Service

Contracts – which

suggests the following

clauses should be

included

Confirmation that TUPE will apply

Agree liability for pre and post transfer matters

Ensure transferee has adequate pension provision, including

bulk transfer arrangements and commitment top secure

pensions in a future transfer

Commitment that the transferee will inform the schooll of any

measures it envisages with regard to the employees.

Agree any indemnities

Commitment from transferee that it will treat new joiners

equitably including access to a pension scheme

Commitment that the transferee will continue to supply

employee information throughout the length of the contract so

that it can monitor compliance on employee matters

A mechanism for resolving any dispute about the application of

the Code of Practice

Right to enforce terms of the contract if the transferee fails to

meet its obligations

Right to disqualify the transferee from future tenders if

necessary

Consider what information

should be disclosed to

prospective transferees

This can be broken down into component parts:

Workforce Profile

Total number of staff involved

Names, ages, dates of birth and gender

Race and ethnic origin

Length of service and date continuous service began

Job Title and grade

Organisational structure

Identify non-standard workers, such as part time workers, fixed

term workers, temporary staff, secondees, those absent on sick

leave, maternity leave, career break etc

Identify any self-employed contractors and provide details of

the contractual arrangements

Identify elected employee representatives


May 2011 8

Any staff that do not wish to transfer

Pay and benefits

Salary levels

Frequency of payment

Overtime rates

Commission, bonuses, allowances

Details of all benefits including;

Pensions

Company cars or allowances

Loans

Membership fees

Pay review date

Terms and conditions

Relocation provisions, such as mobility clause, relocation compensation package

Holiday entitlement

Sick pay

Hours of work

Notice periods

Any pay in lieu of notice

Any enhanced redundancy payments, either express contractual term or custom and practice

Restrictive covenants Industrial Relations

Names of any recognised trade unions

Types of workers covered by any recognition agreement

Details of any recognition agreement

Details of any collective agreements

Details of any collective agreements that are legally binding

Details of any industrial unrest – both current and past

Litigation

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Details of any outstanding or threatened litigation, including

personal injury claims, health and safety issues and

employment tribunal claims (potential or actual).

Documentation

Provide samples of offer letters

Statement of particulars

Sample contract of employment

Staff handbook

Employment practices and procedures

Collective agreements

Workforce agreements – such as Working Time Regulations,

Parental Leave etc

Pension scheme and employee handbook

Details of pension employee trustees

Details of equal opportunities policies and any positive action

strategy in place

Recruitment practices

Planning staff consultation

It is vital to handle consultation with employees effectively and with as much transparency as possible.

Transfers can be unsettling and employees need to have clear communication and reassurance. The

following should help to facilitate the consultation process:-

Appoint Manager to be lead officer with staff and representatives

Decide when to begin consultation

Decide who to consult with ensuring all key stakeholders are included in the process

Decide on scope and content of the consultation

Decide on a timetable that includes adequate time for representatives to make a meaningful

submission and for it to be considered

Create a mechanism for meaningful consultation

Create open communication and allow employees to be able to ask questions at all times

Ensure employees are offered support services such as Counselling throughout the process






May 2011 10

Communication mechanisms

It is important to continue to communicate with staff in a variety of ways through out the whole process.

This will start as soon as the decision to outsource is being considered. It will give the opportunity for

issues to be discussed and resolved before they become problems, to allay fears and answer questions.

Communication will be through a variety of mechanisms including:

Newsletters

Meetings

Letters

Frequently asked questions sheets (FAQ’s)

Briefing notes (used for specific topics)

Access to information via a helpline or nominated team/person

Intranet and consultation email address

Roadshows

Communications should be on a regular basis even when there is little or nothing new to say. The first

communications will ideally be a meeting at which as much information as possible should be made

available. A letter or newsletter confirming the content of the meeting and any information requested

should follow this. It should also include contact details of management and trade union representatives

who can provide information and advice.

As soon as the decision has been made on the successful or preferred bidder a meeting will be arranged to

discuss the details of the transfer, identify any measures and joint consultation with trade union

representatives should commence. Arrangements should be made for meetings between the transferring

employees and the new and existing employers together with trade union representation.

Meeting with the Successful or Preferred Provider

Once the successful or preferred supplier has been identified a meeting with that provider needs to take

place to discuss the detail of the transfer (staffing, property, equipment, information), and identify any

measures that may be taken. Management, Contracts, Legal, HR and Trade Union representatives should

be at the meeting.

Changes to terms and conditions where the principal reason is the transfer itself will be rendered void by

the regulations. Changes connected with the transfer are permissible if they are for an ‘economic,

technical or organisational reason entailing changes to the workforce’ but full consultation is required.











May 2011 11

Where measures are identified, the employer of the affected employees must inform their Trade Union

representatives of these measures in writing and inform the employees who will be affected. Measures

will include where an employer proposes to make material change in relation to working practice or

working conditions eg variations to work patterns, change of pay date, changes to reporting lines, place of

work etc. It may also include situations where employees are likely to be made redundant or where

positive plans to achieve employee reductions (other than through natural wastage) are being proposed.

Where redundancy or dismissal is envisaged the relevant procedures must be followed.

Information to be provided to the Transferee

Under the TUPE regulations the transferor (current employer) has a duty to provide information which is

called Employee Liability Information to the transferee within a certain time scale. The necessary

timescales for obtaining this information must be built into the planning process. For example if actuarial

estimates are required (pensions) these can take up to 10 weeks to obtain.

The transferor (current employer) must provide the transferee (new employer) with a specified set of

information (employee liability information). This information will assist the new employer in

understanding the rights, duties and obligations in relation to these employees who will be transferred to

them. This should help the transferee (new employer) prepare for the arrival of the transferred employees.

Disclosure of Employee Liability Information

The employee liability information must include that of any person who would have been employed by the

transferor and assigned into the organised grouping of resources or employees to be transferred if the

individual had not been dismissed for the transfer itself or for a non-economic, technical or organisational

reason connected with the transfer i.e. in circumstances where the dismissal is automatically unfair.

The information must be provided no later than 14 days before the transfer. Once the employee liability

information has been provided, the transferor is under an obligation to notify the transferee in writing of

any change in this information. It is permissible for the transferor to give notification in more than one

instalment and indirectly through a third party for example where an outgoing contractor chooses to give

the information to the incoming contractor via the client.











May 2011 12

Law relating to Employee Liability Information

Employment rights Act 1996

Pensions Act 2004

Pensions Schemes Act 1993

Transfer of Undertakings (Protection of Employment) Regulations 2006

Transfer of Employment (Pensions Protection) Regulations 2005

Under the TUPE Regulations 2006, regulation 11 the transferor is obliged to notify to the transferee in

writing of the ‘employee liability information’ of any employee who is assigned to the organised grouping

of resources or employees that are the subject of the relevant transfer. The information that must be given

is:

The identity and age of the employee

Particulars of employment that an employer is obliged to give to an employee pursuant to the

Employment Rights Act 1996 section 1.

Name of employer

Name of employee

Date on which the employee’s period of continuous employment began (taking into account any

employment with a previous employer that counts towards that period).

Scale or remuneration or method of calculating remuneration.

Intervals at which remuneration is paid (weekly/monthly /other)

Any terms and conditions relating to hours of work (including any terms and conditions relating to

normal working hours).

Any terms and conditions relating to holiday including bank and public holiday pay (the particulars

given being sufficient to enable the employee’s entitlement to accrued holiday pay on the

termination of employment to be precisely calculated).

Any terms and conditions relating to incapacity for work due to sickness or injury, including any

provision for sick pay.

Any terms and conditions relating to pension schemes and the details of whether there is a

contracting out certificate in force in accordance with the Pension Schemes Act 1993.

Length of notice an employee is obliged to give to the employer.

Length of notice an employee is entitled to receive from the employer.

Title of job employee is employed to do or a brief description of the work for which the employee is

employed.

Where the employment is not intended to be permanent, the period for which it is expected to

continue or if it is for a fixed term the date when it is to end.













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The employees’ normal place of work or, where the employee is required or permitted to work at

various places, an indication of that and the address of the employer., the period for which it is

expected to continue or if it is for a fixed term the date when it is to end.

Details of any collective agreements that directly affect the terms and conditions of the

employment including, where the employer is not a party, the persons by whom the collective

agreements were made.

Where the employee is required to work outside the UK for a period of more than one month:

the period for which he/she is required to work outside the UK;

the currency for which remuneration is to be paid while he/she is working outside of

the UK;

any additional remuneration payable to him/her and any benefits to be provided to or

in respect of him/here by reason of his/her being required to work outside the UK and;

any terms and conditions relating to to his/her return to the UK

Details of the disciplinary rules affecting employees (Disciplinary Procedure)

Details of the grievance procedures applicable to employees

Disciplinary action taken against any employee within the last two years. Brief details including the

outcome and the dates on which these events took place.

Grievance procedures raised by any employee within the last two years. Brief details including the

outcome and the dates on which these events took place.

Resolved court or tribunal cases, claims or actions bought by employees against the organisation within

the previous two years. Brief details including the outcome and the dates on which these events took

place.

Potential court or tribunal cases. Claims or actions that the transferee reasonably believes those

employees may bring against the organisation arising out of the employee’s employment with the

organisation.

Glossary of Terms

Asset Anything of value owned by Torbay Council for


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example, buildings, equipment, and systems

Code of Practice on Workforce matters The Code of Practice applies to all principal

local authorities in England and Wales and

constitutes guidance on how local authorities

might meet their best value duty. Dates back to

March 2003.

Consultation Communication and information provision for all

concerned in a timely and structured manner

Contractual Expressed and implied terms and conditions of

employment e.g. salary, annual leave

entitlement and date of commencement etc

Employee Liability Information The set of information the transferor employer

must provide the transferee employer.

Liability A situation that you are answerable to or legally

responsible for

Litigation A legal proceeding

Mechanism A system or structure to assist with the TUPE

process e.g. communication system

Stakeholder A person or groups of individuals affected by or

having an interest in the operations of the

organisation such as employees, customers etc

Terms and Conditions Statement of particulars of employment

Transferee Organisation to which the service is being

transferred to.

Transferor Organisation from which the service is being

transferred from.

TUPE The Transfer of Undertakings (Protection of

Employment) Regulations 2006 referred to in

this document as TUPE 2006 is now the main

piece of legislation governing the transfer of an

undertaking, or part of one, to another.

Further Information Sources

http://www.berr.gov.uk/files/file20761.pdf – Link to DTI guidance on TUPE 2006

http://www.civilservice.gov.uk/publications/pdf/stafftransfers.pdf

http://www.opsi.gov.uk/si/si2006/20060246.htm







http://www.berr.gov.uk/files/file20761.pdf

http://www.opsi.gov.uk/si/si2006/20060246.htm

May 2011 15

www.lge.gov.uk

Policy Feedback

Should you have any comments regarding this policy, please address them to the HR Policy Feedback

mailbox –

[email protected]

History of Policy Changes This guidance was first agreed by members of the Childrens’ Services JCC in July 2008 Date Page Details of Change Agreed by:

May 2011

3 Update to Equality Statement Schools’ JCC 28.4.11

May 2011 11 Update to measures with examples

Schools’ JCC 28.4.11

Policy Review Date – May 2014, unless operational/legislation reasons require it before.








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