T.U.P.E. Transfers. Cathy Taylor 1 May May, 2015 British Medical Association

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1 T.U.P.E. Transfers Cathy Taylor 1 May 2015

2 What is T.U.P.E.? Transfer of Undertakings for the Protection of Employment (2006) 2

3 When does it apply? The regulations apply when: a business or undertaking, or part of one, is transferred to a new employer; or when a service provision change takes place outsourcing, change of contractor, bringing back in-house. In other words the identity of the employer has to change

4 In general terms.. The Regulations preserve employees continuity of employment and the terms and conditions of employees who have been transferred to a new employer. Therefore when the transfer takes effect, the employees transfer with the same rights and duties (including collective agreements) as they enjoyed under their previous employer except for certain occupational pension rights. The new employer will also take on any liabilities such as employment tribunal claims, disciplinaries and grievances Employees can object to the transfer either to the new employer or the former employer, BUT the employee is then deemed to have resigned upon transfer. NO time limits to protection

5 Protection for affected employees The Regulations protect employees from dismissal prior to or after a relevant transfer. Employees representatives have a right to be informed about a prospective transfer Employees reps must also be consulted about any measures which the transferor or transferee employer envisages applying to affected employees The transferor must provide information about the transferring workforce to the new employer prior to the transfer taking place. The Regulations apply regardless of the size of the undertaking or the affected workforce.

6 Pension rights Occupational pension rights earned up to the time of transfer are protected but the new employer is not obliged to continue identical pension arrangements. However, the new employer must offer a minimum level of pension provision to the transferred employees.

7 Pensions cont. Fair Deal protects staff whose job moves from public to private sector Requires private provider to offer broadly comparable pension to NHS Pension scheme under TUPE NHS Pension if transferee has Direction Status 2012 favourable change allowed to remain in NHS Pension Scheme if transferred to private sector

8 NHS Services moving to private sector Commissioners determine which services can be tendered out Detailed and lengthy tendering process Once the preferred provider is identified, due diligence takes place, and staff affected are informed of impending TUPE transfer Becoming more common under H&SC Act 2012

9 BMA Representation The Local Negotiating Committee (LNC) and the BMA IRO should be informed Talk to your LNC reps about any problems or concerns The LNC will ask: Who? What? Why? When? Who is transferring; legal economic and social implications of the transfer; what measures are intended Confirm TUPE transfer and that TCS, BMA recognition etc. transfer Check consultation document and comment/question Individual member representation at 1:1 meetings if required

10 Statement of Measures Notification from transferee (new employer) of changes it will make post transfer Clarifies what is covered by TUPE and what isn t Key document - may be small e.g. change of pay date, or may be more significant.

11 E.T.O. Changes Economic, Technical or Organisational Employer can change TCS after transfer IF it is for an ETO reason connected with the transfer entailing changes in the workforce (eg job functions, numbers) or it is unconnected to the transfer Harmonisation of TCS is not a valid reason per se

12 Things to consider. Optional and Discretionary Points and CEAs Juniors has the Deanery/LETB been consulted? Study Leave funding NHS Pension (and injury benefits) DDRB awards NHS Indemnity Revalidation RO and appraisal

13 New TUPE Regs 31 Jan

14 New Regs Updates 2006 Regs part of Red Tape Challenge Govt view that 2006 Regs gold plate the EU Acquired Rights Directive and act as a barrier to business Aim to loosen restrictions on changes to TCS and protection against dismissal 14

15 The changes. The activities carried out under outsourced or tendered work must be fundamentally the same for TUPE to apply Allow changes to TCS not if reason for changes is the transfer but previous clause or reason connected with it has been removed. Bring work relocation into scope of ETO reasons dismissals are no longer automatically unfair because of a change in the work location Terms and conditions from collective agreements may be renegotiated after one year provided that overall the contract is no less favourable to the employee

16 Cont. In some circumstances, contractual changes arising from new collective agreements agreed by the outgoing employer are not required to be incorporated after a transfer Collective redundancy consultation can begin before the transfer if both employers agree Information about transferring employees should be given earlier now 28 days before transfer instead of 14 Employers with less than 10 employees are not required to invite the election of representatives for consultation purposes if no existing arrangements are in place must consult each individual employee

17 Quiz! 17

18 Q. 1 Can the employer harmonise the terms and conditions of employees who have just transferred? a. Yes b. No c. Depends

19 Answer b Generally not - employer can only vary TCS post transfer if: It has nothing to do with the transfer There is an ETO reason for changing NOTE: policies and procedures which are not contractual can be harmonised by agreement

20 Q. 2 Is this variation connected to the transfer and therefore TUPE protected? Facts: Prior to the transfer, some employees who were not full-time were paid full-time. 3 years post transfer the employer noticed this. They then paid them pro-rata.

21 Answer..No Real reason for variation was fact that employees had been mistakenly paid at fulltime rate

22 Q. 3 Can you vary TCS post transfer in circumstances below? Employer wishes to harmonise TCS across a number of different contracts of employment. Employees object, are dismissed and then re-engaged on harmonised TCS.

23 Answer..No These employees were clearly dismissed for the reason of harmonisation (not a change in the workforce)

24 Q. 4 Is a change of location post transfer a breach of TUPE? Employee objects to transfer on basis that there is a change to work location outside terms of current contract. Is this variation to the contract post transfer a breach of TUPE?

25 Answer..No Prior to 31 Jan 2014, would have been deemed automatically unfairly dismissed, esp if change to employee s detriment 31 Jan 2014 no longer automatic unfair dismissal

26 Q.5 Was a failure by the new employer to honour a term of the contract post transfer a breach of TUPE? Where that term relates to a pay increase awarded under a collective agreement ie by a recognised negotiating body but where the new employer is not part of the negotiating machinery

27 Up to 31 Jan 2014 yes 31 Jan 2014 no, if new employer is outside of the collective negotiating arrangements they are not obliged to adhere to them.

28 Conclusion TUPE is a valuable employment protection mechanism The 2014 regs make changes to detriment of employees, though did not go as far as was mooted constrained by European law Unions must be informed and consulted BUT watch out for evolving case law as challenges may go to ECJ

29 Questions? 29

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