Introduction to TUPE and bidding

When you bid to take over an existing service, you may find the buyer asks you to explain how you will manage the transfer of staff under TUPE, or the Transfer of Undertakings (Protection of Employment) Regulations 2006, to give it it’s full title. This important piece of legislation is intended to protect an employee’s terms and conditions if a contract they work on transfers from one company to another. If your bid is successful, it means:

• Staff who currently work for the incumbent provider will, with some limited exceptions, become your employees
• You’ll have a legal obligation to honour their existing terms and conditions of employment.

In the world of bidding, TUPE therefore comes up quite a lot as a topic. The buyer’s objective is generally to check you understand what your legal obligations will be, and you have the capacity and expertise to manage the transfer effectively.? Of course, the buyer will also be interested to hear about any innovation you might be proposing in how you’ll transfer the staff to your business. ?

So, what do you need to know?

The first and most important thing is to establish whether TUPE will apply or not.? In many instances, buyers will give you an indication, but bidders are responsible for satisfying this for themselves. ?Remember, the right to TUPE rests with the employee – a current employer cannot legally prevent a member of staff from transferring, and a new employer cannot refuse to accept the individual.

There may be some limited exceptions when TUPE doesn’t apply.? For example, the general rule is that only staff who spend at least half of their time on the contract are entitled to transfer. Intro

Given the rules can be complicated, you may, therefore, wish to take advice from an HR expert if you are unsure. ?The Advisory, Conciliation and Arbitration Service (ACAS) also has some good advice on their website about when TUPE does and doesn’t apply and how to manage the process effectively.

If TUPE does apply, then all bidders should receive details of the staff who are eligible to transfer at the time when the buyer releases the procurement documents.? Examples of the type of information you can expect to receive will include each employee’s job title, their contracted hours, salary, pension arrangements, and any benefits (e.g. company car or private medical insurance) or bonuses they may be entitled to.

You will need this information so you can plan out your solution for the contract, for example, whether the number of staff who transfer will be sufficient or whether you need to recruit additional staff.? You will also need the information to price your bid. ?In most instances, buyers will obtain this information from the incumbent employer for you. ?While it is not best practice, some buyers will leave bidders to obtain the information from the incumbent employer for themselves. ?

How do you write a good TUPE answer?

Whether TUPE is treated as a stand-alone section or (as is more common) part of a mobilisation question, the ingredients for crafting a good TUPE answer will usually be the same. The usual caveats apply, of course, that you should always read the question carefully to make sure you’re writing a targeted and tailored answer to buyer actual question.

So, what goes into a good TUPE answer?

Make sure you cover the following things:

• Demonstrate that you have a good understanding of what you will be legally required to do under the TUPE regulations – keep your answer within the context of the contract you are bidding for rather than something generic about your obligations
• Explain exactly how you will manage the transfer process – from working with the incumbent employer to check their data is accurate to engaging with the transferring staff before they join you, to make the process as smooth as possible for them
• Provide a clear timeline of TUPE activities such as meetings and consultations, and be specific about who on your team will do what
• Show that you are mindful of your UK GDPR obligations and the steps you will take to protect the integrity of the personal data provided to you.

The concept of preparing a bid response on TUPE can be daunting and so it’s important you engage a bid writer that fully understands the topic so they can write up your response with conviction and clarity.? We at Kittle Group prepare such responses several times each month and so if you want to know more about TUPE and bidding, or any other topic, send us a message to [email protected]. We’d be happy to hear from you and help.