HR MANAGEMENT GUIDELINES (HR/D02) TUPE

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1 HR MANAGEMENT GUIDELINES (HR/D02) TUPE

2 TUPE MANAGEMENT GUIDELINES CONTENTS PAGE SECTION PAGE 1. TUPE: definition 1 2. When TUPE applies 1 3. HR involvement 1 4. The employees transferring in 2 5. The employees transferring out 2 6. SCAS as the transferee organisation 2 7. The transferee organisation 3 8. Duty to consult and inform 3 9. Employee Liability Information Pensions Useful sources of information 3 APPENDIX 1. Frequently Asked Questions Contents Page

3 TUPE practical guidelines for management 1. What is TUPE? The Transfer of Undertakings (Protection of Employment) Regulations were originally drafted to implement, in the UK, the EU s Acquired Rights Directive 1997 (replaced by the Business Transfers Directive in 2001) in order to protect the terms and conditions of employees required to transfer to another organisation as a result of their business unit or entity transferring. Where it has been agreed that TUPE applies (ie, it is a relevant transfer), any organisation taking on employees as a result of such a transfer must not change their pay or conditions for any reason relating to the transfer. Pensions are not strictly speaking protected but a transferee organisation must provide a minimum standard of company pension. Therefore, in sum, it is protection for transferring employees of their existing terms and conditions. 2. How do we decide whether TUPE applies? Generally speaking, when all or part of a service or business entity transfers from or into the NHS, then TUPE will apply. If the transfer is taking place within the NHS, this would normally be a straightforward decision as business operating criteria are standard and nationally agreed. However, it can be less so when different types of organisation are involved. The following are taken into account when making the decision: the type of undertaking being transferred; whether any tangible assets (buildings, moveable property etc) are transferred; whether any intangible assets are transferred and the extent of their value; whether the majority of the employees are taken on by the new employer; whether any customers are transferred; the degree of similarity between the activities carried on before and after the transfer. 3. Use your HR department s expertise If you have been tasked with managing a transfer that is covered by TUPE, contact HR in the first instance; there will be someone with experience of dealing with this already, who will work with you through the process. 4. Information Use the template of Frequently Asked Questions (FAQs) at appendix 1 for this purpose. Adapt and modify as necessary. 5. Unions and staff side representatives duty to inform and consult Staff side representatives must be informed of the pending transfer and who will be affected and how and, to ensure a smooth transfer, they should be involved from an early stage and to be clear and open with them (which is best practice in employee relations, in any case). Whichever direction the transfer; specifically, they need to know: that the transfer is taking place; Page 1

4 what the legal, social and economic implications of the transfer are; what measures are planned in relation to affected employees (if necessary) or that none are; It is a good idea that union/staff representatives attend all group meetings with affected employees (and the transferee employer) and crucial that all employees are aware that they may have a staff side/union representative in attendance at 1-1 meetings. Equally, the representations of staff side and union representatives should be taken into account when planning the transfer. 6. Transferring in your responsibility towards transferring employees As the key provision of TUPE is the preservation of existing terms and conditions, you need to become familiar with these and ensure that nothing is changed in relation to the transfer. This will ensure that the transfer is as smooth a transition as possible. The details will, initially, be mainly generic general terms and conditions, numbers transferring, locations and post details. Once the contract is signed and the transfer agreed, you will be entitled to receive personal information and will then be able to plan properly. Transferring employees should be set up on ESR in the same way as any other new employees. At this point, you will take a greater responsibility towards the staff who are about to become SCAS employees and should arrange meetings to introduce them to SCAS prior to them going through the formal corporate induction process. 7. Communication and liaison with the Transferring Organisation With HR, set up clear lines of communication with the equivalent manager and HR representative and arrange to meet on a regular basis. You will discuss, in general terms, how the transfer of staff is going to be managed and who will take responsibility for what. At the beginning of the process, the responsibility will be mostly that of the transferring organisation as they meet with their affected staff and explain what will happen in terms of their terms and conditions. However, it is good practice to be present at these meetings in order to answer questions relating to what will happen post-transfer. As the transfer date approaches, the transferee organisation will take more responsibility. 8. Changes to terms and conditions Should there be any intention to make contractual changes, you must be able to prove that they have no connection with the transfer and then subject to the usual consultation process change can happen. In fact, so long as there is no connection to the transfer, change can happen at any time. However, if it can be proved that a change was connected with the transfer, even if a full consultation process has taken place, it will breach the TUPE regulations and be unlawful. 9. Transferring out your responsibility towards transferring employees In order to make the best decision, your employees need to be fully informed and to have the opportunity to ask questions, make comments and engage in a proper 2-way dialogue. You should arrange group meetings and one-to-one meetings with all affected. Unions should be involved in the group meetings and individuals should have the option to be accompanied in their one-to-ones. Page 2

5 So far as possible, the transferee organisation should also be involved in group meetings as many questions will refer to future terms & conditions and other matters. 10. Communication and liaison with the Transferee Organisation With HR, set up clear lines of communication with the equivalent manager and HR representative and arrange to meet on a regular basis. You will discuss, in general terms, how the transfer of staff is going to be managed and who will take responsibility for what. As the transfer date approaches, the actions will become more the responsibility of the transferee organisation as the staff are about to become theirs. 11. Employee Liability Information The attached TUPE Information spreadsheet gives a timeframe and list of required information that you must pass on to the new employer or, conversely, information you need to keep relating to staff who are to be transferred in to SCAS. The information should be provided at least 2 weeks (by you or to you depending on the direction of transfer) before the transfer but note that to comply with data protection only pass on general (ie, not personal) on before the transfer is confirmed and contracts signed. The first worksheet gives you a list of the information required; the second gives you a timeframe/checklist that can be used; the third is a blank template for the information relating to all transferring individuals. The column headings relate directly to the list of exactly what is required by the transferee organisation. You can produce an anonymised version of this when passing on information in advance of the contract being signed. 12. Pensions Note that pensions are not protected by TUPE but the transferee employer must provide a pension that satisfies minimum criteria which are unrelated to the pension provided by the original employer. The pension need not replicate that which was previously in force; ie, a final salary pension can be replaced by a money purchase scheme; also For transferring NHS staff, a transferee employer can apply to become a Directions employer and thereby be able to administer an NHS pension scheme for those staff who wish to be members (who must then individually apply to the NHS Pensions Scheme to become a member of it). 13. Inform yourself You are strongly advised to visit the relevant government websites, so that you have at your fingertips the most up-to-date information in relation to TUPE. The following links are extremely useful: Page 3

6 Appendix 1 Frequently asked questions relating to TUPE 1. What is TUPE? 2. What does TUPE mean for me? 3. How will this process affect me? 4. Presuming all goes according to plan when do you expect the transfer to take effect? 5. Who will I be employed by after transfer? 6. What is the TUPE consultation period? 7. When will the TUPE consultation period start? 8. Will there be union, staff side and representative meetings for staff to attend during the period of TUPE consultation? 9. How can I express my views during the TUPE consultation period? 10. What further work will happen after transfer? 11. Are there any specific changes to my terms and conditions as a result of this merger? 12. Will I be required to work on another site as a result of this merger? 13. What will happen if I do not want to transfer? 14. What will happen to my continuity of service when I transfer? 15. What will happen to my pension? 16. How will policies and procedures be integrated across multiple sites? 17. Who do I contact if I have more questions? 1. What is TUPE? TUPE is the Transfer of Undertakings (Protection of Employment) Regulations, 2006, and its purpose is to preserve staff contractual terms and conditions of service, following their transfer from one organisation to another. 2. What does TUPE mean for me? This means that terms and conditions such as hours, annual leave and pay remain unchanged. Additionally, your service with the previous NHS trust will be taken into account for statutory and contractual entitlements such as maternity, occupational sick pay, redundancy pay. 3. How will this process affect me? The process should be seamless and there will be very little change operationally on the day of the transfer. Your contracted terms and conditions are protected by TUPE and will not change. You should perform your usual duties at your [current place of work/new location] as normal. 4. Presuming all goes according to plan when do you expect the transfer to take effect? [Date] FAQs, page I

7 5. Who will I be employed by after transfer? You will be employed by [transferee name]. 6. What is the TUPE consultation period? The TUPE consultation period is planned to commence in [dd/mm/yyyy] and will close at the end of [dd/mm/yyyy]. This is the Trust s opportunity to engage staff and their representatives in a consultative process in which all questions and thoughts are recorded and discussed. During this time, we will ensure that information is made available to staff on a regular basis and will work in partnership with the local Trust HR Department and nominated management teams, unions, staff side and representatives to ensure the minimum of anxiety to colleagues. This recognised and established vehicle for staff representation will facilitate two-way communication between the merger TUPE team and Trust staff. 7. When will the TUPE consultation period start? It is anticipated that the TUPE consultation will start on [dd/mm/yyyy] and end on [dd/mm/yyyy]. However, staff members will still be able to ask questions right up until the proposed transfer date [dd/mm/yyyy]. 8. Will union and staff side representatives attend meetings for staff during the consultation period? Yes, representatives from the recognised unions will be invited to attend. They will be consulted and updated on a regular basis (there will also be an open forum for staff). Locations, dates and venues will be publicised via the internet, intranet, management and representatives when arranged so everyone has the opportunity to attend. You will be entitled to bring a union representative or colleague to any one-to-one meetings that are arranged. 9. What further changes will happen after transfer? Transfer in Once transfer has taken place, work will begin with staff to consider in more detail the best structure for the new organisation/service/department. Where this means change to staff structures, these would be subject to a separate consultation with the people affected. Work will be required to review and align terms and conditions so that they are fair for all transferring staff. Transfer out [Detail any changes which are envisaged and why they are happening] Details will be sought from the transferee organisation and all transferring staff will be informed of any planned changes. The matter will be discussed in group meetings. 10. Are there any specific changes to my terms and conditions as a result of this merger? [Detail any changes which are envisaged and why they are happening]. 11. Will I be required to work on another site as a result of this merger? [Specify any location changes agreed as part of the transfer]. Any changes made subsequent to the TUPE transfer will be the subject of consultation. FAQs, page II

8 12. What will happen if I do not want to transfer? Your employment will automatically transfer to [XXX] on [date]. If you do not wish to transfer, you will be deemed to have resigned and your last day of service will be the day before the transfer. As a resignation, you would not be entitled to any redundancy or other severance payments. This serious step should be considered very carefully; do consult with your line manager or HR before making this decision. 13. What will happen to my continuity of service when I transfer? Your continuous service will transfer with you as if [name] had employed you from the start. 14. What will happen to my pension? [If remaining in the NHS] There will be no change to your current NHS Pension scheme and staff who are currently in the NHS Pension scheme will transfer over under their current agreement. For other scenarios, refer to the pension section in the main guidelines. 15. How will policies and procedures be harmonised? A list of critical policies for [mmm-yyyy] (the proposed merger date) has already been agreed. These policies would be made available in a single location that all staff will be able to access (on the internet and intranet). 16. Who do I contact if I have more questions? If these questions have not answered all of your queries, please your questions to [Contact details] FAQs, page III

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