Steps to a Successful TUPE Process

Many people who work in a school have come across the term “TUPE” or to give it it’s proper title; “Transfer of Undertakings (protection of Employment) Regulations”.?? Whether you are looking to transfer in or out your school’s catering service, cleaning service or maybe your school is joining a Multi Academy Trust (MAT), it is essential to understand your obligations with regards to TUPE.

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For TUPE to be recognised, one of the following needs to take place:

• an organisation, or part of it, transfers from one employer to another
• a service transfers to a new provider, for example when another company takes over the contract for office cleaning

(ACAS)

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Prior to starting the TUPE process with your employees, you will have already considered many other factors as part of due diligence. Examples will be inviting tenders, deciding on a preferred supplier or MAT, establishing whether TUPE applies to the transfer. There are many stakeholders to consider and consult with and you can expect the transfer process to take at least 12 weeks, longer in many cases.

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TUPE is intended to protect the rights of employees and their terms and conditions of employment. Unless otherwise agreed, all terms and conditions of employment will transfer to the new employer. If you are the outgoing employer then you have an obligation to consult with your employees, this should be “meaningful consultation”. To do this you will have identified which employees you believe will transfer to the new employer. Employees can be asked to elect representatives to act on their behalf, however if there are fewer than 10 employees affected then you are required to directly consult with employees.

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Details of each employee will be sent by the current employer to the new employer at least 28 days before transfer, this is known as the “employee liability information” or “ELI”. The new employer will then use this information to determine whether they accept that these employees should transfer to their organisation and whether they will be making any changes to any terms, conditions or working practices post transfer. Any such changes are known as “measures”. Measures will be anything from restructures, change of working hours through to changes of work uniform, changes to any benefits, pay dates, pension arrangements etc. Failure to declare any measures may result in any changes made post transfer being deemed unfair. If you are the incoming employer then you will want to ensure that you have a comprehensive list of ELI for all employees so you can identify such measures. Those on maternity leave, long-term absence, casual and temporary workers should also be included. It is worth noting that the new employer can still make changes post transfer that were not consulted on if it can be shown that the employer could not have known about the change. An example of this would be falling pupil numbers, increased costs or some other unforeseen circumstance.

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It is likely to be an unsettling and uncertain time for employees. Meaningful consultation will be required to take place with employees and/or their representatives over a period of time, this is particularly important if there are any declared measures that it is believed will affect employees in a negative way. The period of time is not fixed but must be long enough to be considered meaningful, allowing employees or their representatives to make representations that will need to be considered and responded to. It is good practice to involve the new employer and make sure employees know who they will be working for and provide reassurance. Again, you will need to include anyone on maternity leave or other long-term absence in consultation. Prior to transfer you will issue a statement to each employee to show the terms and conditions that will transfer to the new employer. This provides the opportunity to correct any inaccuracies which will not be possible post transfer. An employee can opt not to transfer to the new employer, but they will be deemed to have resigned their position.

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As always, here at FEPS we are on hand to support our clients and provide advice and guidance on TUPE matters. If you wish to get in touch with the team at FusionHR, call 01924 827869 or leave your details here for a call back.

You may wish to catch up on our webinars, we hosted one on the ‘5 Steps to a Successful TUPE Process’. Catch up here.