MAYFIELD SCHOOL. Author: Torbay Human Resources [April 2011] Renewed 9 th November 2015

Transcription

1 MAYFIELD SCHOOL Policy: TUPE Guidelines for Managers Author: Torbay Human Resources [April 2011] Governors Committee: Leadership Date adopted: 23 rd May 2011 Renewed 9 th 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. 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 May

3 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 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. 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 May

4 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). Practical Implications for Managers May

5 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 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. May

6 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 :- df/stafftransfers.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? Have you begun consultation? Refer to the school s Redundancy policy. May

7 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 May

8 Identify elected employee representatives 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 Details of any outstanding or threatened litigation, including personal injury claims, health and safety issues and employment tribunal claims (potential or May

9 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

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 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 May

11 permissible if they are for an economic, technical or organisational reason entailing changes to the workforce but full consultation is required. 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

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 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. May

13 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. 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 May

14 Code of Practice on Workforce matters Consultation Contractual Employee Liability Information Liability Litigation Mechanism Stakeholder Terms and Conditions Transferee Transferor TUPE Council for example, buildings, equipment, and systems 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 Communication and information provision for all concerned in a timely and structured manner Expressed and implied terms and conditions of employment e.g. salary, annual leave entitlement and date of commencement etc The set of information the transferor employer must provide the transferee employer. A situation that you are answerable to or legally responsible for A legal proceeding A system or structure to assist with the TUPE process e.g. communication system A person or groups of individuals affected by or having an interest in the operations of the organisation such as employees, customers etc Statement of particulars of employment Organisation to which the service is being transferred to. Organisation from which the service is being transferred from. 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 May

15 Link to DTI guidance on TUPE Policy Feedback Should you have any comments regarding this policy, please address them to the HR Policy Feedback mailbox 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 Update to Equality Schools JCC Statement May Update to measures with examples Schools JCC Policy Review Date May 2014, unless operational/legislation reasons require it before. May