FREQUENTLY ASKED QUESTIONS TUPE

Transcription

1 FREQUENTLY ASKED QUESTIONS TUPE DATE: 25 th July 2014 VERSION: 4 AUTHORS: HR ADVISORY NUMBER QUESTION ANSWER 1 What is TUPE? TUPE is an abbreviation for the Transfer of Undertakings (Protection of Employment) Regulations (2006). In short, the aim of these regulations is to provide protection to employees when their employer changes following a transfer of an undertaking. 2 What does TUPE mean? TUPE preserves the terms and conditions of employees who are transferred to a new employer and ensures continuity for employees, i.e. their continuity of service is preserved. 3 Will TUPE apply to me? TUPE applies regardless of the size of the organisation (although there are minor differences concerning how smaller employers with less than 10 employees are required to consult) or the number of employees subject to the TUPE transfer. 4 I hear words such as transferor and transferee being used - Who is the transferor and who is the transferee? Generally speaking, the TUPE regulations apply to employees whose work moves over to the incoming employer. However, there are very specific rules around this which will need to be considered once providers are identified. Once the new provider has been identified, if TUPE does or doest not apply, you will be notified. The transferor means the organisation who carried out the activities prior to the service provision change and the transferee means the organisation who carries out those activities after a TUPE transfer. 5 What are the legal obligations for the transferor and transferee when a Both organisations have a responsibility to provide 1

2 TUPE situation occurs? prescribed information to the appropriate representatives. NCC have recognised trade unions to consult with, but if the new provider subsequently awarded the service has no trade union or union representatives, then representatives must be elected by the affected employees for the purposes of consulting over the transfer. If the transferee envisages taking measures after the transfer, the duty to consult with the appropriate representatives will also arise. After 31 July 2014, businesses with fewer than 10 employees are not required to invite the election of representatives for consultation purposes if no existing arrangements are in place. However, they will still need to inform and consult with their affected employees individually. 6 What information will be provided? Both the transferor and transferee should consult in relation to: those employees who are to be transferred, and those employees who will not transfer but whose job may be affected. Employees of the transferee whose job may be affected as a result of the transfer The following information must be provided: That a transfer is to take place The reason for the transfer and when it is expected to take place The implications for the employees 2

3 The measures that the employer expects to take in relation to the employees The measures that the new employer expects to take in relation to the employees 7 Is there a minimum period for the information and consultation exercise? 8 Can the new provider/employer alter my terms and conditions once transfer has taken place? Both employers must consider any representation made by employee reps during the consultation period, and if any proposals are rejected the employer should give a reason for the rejection. The law in terms of TUPE consultation does not define a minimum period, however NCC wherever possible try to align this with the timeframe used in redundancy situation i.e. minimum of 30 days. The law only provides that the parties are obliged to provide information in good time and that consultation should be conducted with a view to seeking agreement. The new employer may not, unless the Contract of Employment so provides unilaterally worsen the terms and conditions of employment of any transferred employee. Following a transfer an employer may wish to change the terms and conditions of transferring staff, however, any changes where the sole or principal reason for the change is the transfer will be void. However contractual variation is permitted in certain circumstances. 9 Can the new employer dismiss me as a result of the transfer? The new employer cannot dismiss any employee upon transfer unless the employer can establish an economic, technical or organisational reason which requires changes to the work force and further that the new employer must be acting reasonably in treating that reason as sufficient to justify a dismissal. 10 Can the employee object to the transfer? Yes, although this will be deemed to be a resignation. There are provisions which deal with what happens when the objection is motivated because of a substantial change made to an employees working conditions, which is to 3

4 their detriment. Advice should be sought by you if you believe this to be the case. If an employee objects to the transfer then they should inform Northamptonshire County Council or the employer that they object to becoming employed by the new organisation prior to the transfer. 11 How long does TUPE apply? There is no upper time limit on how long TUPE regulations apply. 12 You have said all my terms and conditions of employment will be protected? Can you provide a list of these? You should refer to your contract of employment for your terms and conditions. Please be aware that non-contractual policies do not transfer. To provide an example, maternity and paternity pay will be protected, as too will annual leave and contractual sick pay entitlement,, however how the new employer manages situations in relation to maternity or, attendance may differ. Representatives will be informed about which policies will transfer and those which will not as part of the informing exercise referred to in the above FAQ s. 13 Does TUPE safeguard our pay and hours and terms and conditions of employment? If so for how long? 14 What details get shared with the transferee in relation to the TUPE transfer? Terms and conditions can be changed in line with the provisions included in your current terms and conditions (in the same way as they might be by the transferor prior to transfer and where permitted by the regulations), but TUPE ensures that all staff TRANSFER under the same terms of employment and working conditions. Again, there is no specific time limit which applies to TUPE regulations. There is a duty on the outgoing employer (the transferor) to supply information about the transferring employees to the incoming employer(the transferee). This information is known as the employee liability information. The following information must be provided: 4

5 the identity and age of the employees who will transfer information contained in the written statement of terms of those employees details of any disciplinary action taken against an employee in the last two years details of grievances raised by an employee in the last two years instances of legal actions taken by employees against the outgoing employer in the last two years (any court or employment tribunal claims) information regarding any collective agreements any legal action taken by those employees against NCC in the past two years or anticipated in the light of the transfer 15 Will employees be able to confirm their personal details before they are passed across to the new provider? 16 How soon can the new provider change things like contracts, staffing structures or working conditions? 5 For transfers after 1 May 2014, this information should be given in writing at least 28 days before the completion of the transfer. However, both outgoing and incoming employers must comply with data protection when handling personal information. NCC will normally provide this information to employees to verify during the TUPE process. Such information will ordinarily include: personal details, name, address, date of birth, contact details, details related to their employment, what post they are employed in, hours per week, annual leave entitlement, details relating to salary, tax code, pension etc. There is no timescale set down in law. IF the new employer has this in mind when preparing for the transfer, they must notify NCC so that such proposed changes can be consulted on during the TUPE process. After the transfer, if changes to any of these are proposed, a

6 consultation process must be followed. 17 What happens where an area of business is transferred under TUPE and there are staff who cover this work for only part of their working week? In order to transfer under TUPE, an employee must part of an 'organised grouping of resources or employees' assigned to that part of the business that is being transferred. Note that a 'grouping' of employees can constitute just one person. Where an employee works in both a part of the business that is being transferred and a part of the business that is not being transferred, the question is whether they are assigned to the organised grouping of resources that transfers. This will depend on all the circumstances of the case, although tribunals have looked in particular at: the percentage of time that the employee spends working in the part of the business that is being transferred the employee's contract and what this says about their role the reasons why the employee spends time on particular activities. Where an employee works in a variable pattern over several different parts of a business, it is less likely that they would be held to be part of an organised grouping of employees assigned to any specific part of the business. 18 Do pension rights transfer under TUPE? 19 Can staff have the names of the employee representatives of the new provider? The answer to this question may not always be clear, and NCC will ensure legal advice is sought before decisions are made. Certain pension rights do transfer and this will be a discussion with the representatives once the provider has been identified. This will be communicated once the new provider is identified. 6

7 20 NCC employees benefit from 2 potential pay rises per year A. Cost of living B. Incremental point rises Will both of the above transfer as part of TUPE? 21 Will the new employer pay my salary on the same dated that I currently receive it? 22 Does sick and holiday entitlement transfer as part of TUPE, including the 5 extra days annual leave for continuous service? 23 What happens to an employee s unused holiday in a TUPE transfer situation? A. Cost of living rises are negotiated collectively and transfer. B. Incremental point rises transfer subject to performance appraisal. It is too early to confirm the situation, however if the pay date is due to change, NCC would expect this to be identified as a measure by the new employer and will consult on this with the representatives. Yes In a TUPE transfer situation most rights arising out of an employment contract transfer to the transferee (the new employer). This includes holiday entitlement. If an employee who is transferring under TUPE has accrued more holiday than they have taken at the date of the transfer, the general position is that the holiday will transfer with them, subject to their line managers agreement and they should be able to submit requests to the new employer to take it up until the end of their holiday year. 24 NCC has a policy on the management of sickness and the support of individuals. Does this transfer? 25 A If a member of staff is made redundant by the new employer, after a period of time, will all service (i.e. my service with NCC and the new employer) count for redundancy payment purposes? 26 If a member of staff is promoted does this mean that they would loose all their NCC terms and conditions and take on new terms and The new employer will therefore authorise and pay for holiday that was accrued whilst the employee was working for NCC. No. A Yes. It may be the new employer will offer the promotion on new terms. This is a matter for the new employer. 7

8 conditions? 27 If someone is on a temporary contract and transferred to the new employer, what happens on the expiry of that contract? They will be treated in the same way as they would have been had their employment remained with NCC. If their contract is extended new terms should be agreed or the law will imply them. 28 Can the new employer become a member of the modification order? A new employer can apply to be added to the order. The application will only be successful if it can show a strong connection with local government, for example, it is wholly or partly funded by NCC (or another local authority) or provides a service that used to be entirely provided by a local authority. 29 What happens if I transfer to a new provider and then choose to apply back to NCC? will my continuity of service be protected? Where an employee is transferred under TUPE and voluntarily returns to local government within 5 years, continuity of service for contractual purposes is preserved. 30 If I have any further questions, who should I speak to? Questions should be raised with your representative, however additional general questions may be ed to dwallis@northamptonshire.gov.uk Questions and answers received and sent at/from this address, may be added to this FAQ document for public knowing. 31 Under what conditions would TUPE not apply? There are a number of factors which could mean that TUPE does not apply. However, the application of TUPE is decided on a case by case basis once the new provider has been identified. It is, therefore, too soon at this time to say whether TUPE will or will not apply 8

9 32 Will NCC arrange an opportunity to ask questions regarding this process (in person, to a group)? Once the preferred providers have been identified and work has been done to identify the employees who will be affected, we will be making arrangements to talk to all the staff affected by this process. 33 Will leave which has already been booked, be honoured by the new provider? It is expected that all leave will be honoured by the new provider but this is something you would need to discuss with them direct, and if any changes are anticipated these will be clearly set out as possible measures and consulted upon. 34 Is there a possibility of voluntary redundancy? If TUPE applies the role transfers to the new provider but see FAQs 8 and 9. If the employee decides not to transfer under TUPE then this is considered to be a resignation situation rather than redundancy. Questions raised from s at Spring Lane that may be appropriate to share Question Response 1 What happens to me if I am not in scope to transfer? It is our understanding that we are working closely with Action for Children at this moment in relation to additional information and any concerns/challenges 9

10 they have made. Please be rest assured, if any of the information is challenged which alters and impacts on your employment you will be advised asap and your employment will not come to an end on 1/8/14. However what happens after that, is that decisions will be made in terms of service need and this may impact on future employment. If this is the case there are processes that will need to be followed. You will be informed at each stage of the process. 2 If I am redundant, who makes me redundant? If you do not transfer and as a result of this there is a redundancy situation, then it will be Northamptonshire County Council who progresses the redundancy. If you transfer and following this transfer, there is a redundancy situation, it will be the new provider who progresses the redundancy. 3 What are my entitlements in respect of redundancy? Redundancy Entitlements are as per your terms and conditions of employment, and if you transfer to a new provider, TUPE protects your terms and conditions in relation to redundancy entitlements, however how the new provider manages that organisational change may differ to NCC process. The new employer may not, unless the Contract of Employment so provides unilaterally worsen the terms and conditions of employment of any transferred employee. 10 Following a transfer an employer may wish to change the terms and conditions of transferring staff, however, any changes where the sole or principal

11 reason for the change is the transfer will be void. However contractual variation is permitted in certain circumstances. 4 Is my pension released as a result of redundancy? Need to take advice as it would be if age 55 on NCC t&c s 5 If I am in scope to transfer and I transfer then the new provider makes me redundant, and the pension scheme is a comparable one, not LGPS, what are my entitlements to my pension as I am age 55 and over? The new provider is seeking to provide ongoing access to the LGPS to maintain pension protection If a comparable scheme had been provided it would have depended on the specific scheme rules of the broadly comparable scheme, which may not have 6 If I believe my continuous service to be incorrect, how do I get it changed? 7 I have frozen pension and current pension with NCC what happens to this? been identical. If you believe your continuous service is incorrect, you should raise this with your line manager and if you have documentation to evidence this, please provide this, so that a decision can be made. Active membership will continue with LGPS membership under the new provider, still administered by NCC. 8 If the pension provided by the new provider is not LGPS and is comparable, what happens to my LG pension? The deferred (frozen) pension will remain separate as at present. The new provider is seeking to provide ongoing access to the LGPS to maintain pension protection. In the case of a comparable scheme you would have been given the opportunity to transfer them to the provider or retain them with NCC. 9 I have a declared disability will this be shared with the new provider? 11 This should be shared with the new provider to a) make them aware and b) so that they can understand any adjustments to the workplace.

12 10 Is my absence record shared with the new provider? Absence record will be shared and is transferrable, so that the new provider can pay appropriately. 11 I understand there may be some issues in relation to the first Action for Children to respond payment with the new provider, where we may be emergency taxed is this correct, if yes, what hardship policy does the new provider have? 12 I understand that I need to claim any expenses for travel, Need guidance on this - speak to David Hannah overtime, additional hours worked in July? I understand that the process is through NCC payroll however I understand that as payment will be after my last day of service with NCC, that claims may be emergency taxed is this correct? 13 I work a term time only contract and therefore not at work on the Action for Children to respond day of transfer what happens in September on my return? 14 What is the policy in relation to Christmas with the new provider Action for Children to respond do centres close? How does this impact on my annual leave entitlement? 15 Where will our base be from 1 August 2014, is this still at Spring Action for Children to respond Lane? 16 Will we be eligible to continue to contribute to the LGPS if the new provider offers a comparable scheme? Do we have the choice? The new provider is seeking to provide ongoing access to the LGPS to maintain pension protection. You would be able to continue to contribute to the LGPS under this arrangement but would not be able to under a comparable scheme. 17 I have a disability and have used my 5 days pay Is this shared with the new provider and what are my entitlements going forward? Occupational sick pay (OSP) is not normally paid for the first three working days of any occasion of sickness absence, however, if an employee is eligible for OSP (as detailed in section 5), has OSP benefits remaining and whose occasion of sickness absence is directly related to their disability, they will be paid OSP from the first day of that period of sickness absence. 12

13 In order to be paid OSP from day one of a period of sickness absence, the employee must: have informed the Council of their disability (e.g. through the provision of equalities information provided at the point of recruitment or in writing at any other time during employment) and this information shall be confidentially recorded on ERP; and at the time of the sickness absence, notify their manager that they consider that the absence relates directly to their disability, and subsequently complete the Self-certification & Return to Work form confirming that their absence was directly related to their disability. The maximum number of early access OSP days that may be used is five working days in a rolling 12 month period. The five early access OSP days form part of the 12 weeks full and 12 weeks half OSP benefit and are NOT additional days of occupational sick pay. 18 As I have a disability and need to attend specialist appointments, what is my entitlement on transfer? 13 Employees will not normally be given paid time off for routine medical / dental appointments and are expected to arrange non-urgent appointments for doctors, dentists, physiotherapists etc. in their own time, or make up lost time. Employees who are required to attend hospital, specialist medical or routine screening appointments may request paid time off provided: they have given reasonable notice; and

14 this does not involve more than six appointments over a rolling 12 month period. If it does, they may be required to make time up, take unpaid leave or use some of their annual leave entitlement. Paid time off will normally be limited to a maximum of half the employee s normal working day per appointment and not more than a total of 3 normal working days per rolling 12 month period. 19 I am currently in the Teachers Pension Scheme and have not received an annual update since December 2012 are these still provided annually? 20 Pensions and annual update for LGPS can we request an update of our forecast prior to transfer? 21 Can the new provider change my terms and conditions of employment? 22 I am currently on teachers terms and conditions, does the terms in relation to notice transfer? Annual statements should be provided annually but where the member has logged on to view their record on-line, this switches off the paper statements. TP are trying to encourage members to log on to their system using the My Pension Online, link on This allows the member to view their records and see estimates of the pension benefits accruing for them. Yes, please contact pensions@northamptonshire.gov.uk You will need to provide your full name, payroll number, NI number and date of birth. The new employer may not, unless the Contract of Employment so provides unilaterally worsen the terms and conditions of employment of any transferred employee. Following a transfer an employer may wish to change the terms and conditions of transferring staff, however, any changes where the sole or principal reason for the change is the transfer will be void. However contractual variation is permitted in certain circumstances. For the purposes of resignations and notice periods, 14

15 the dates of the three school terms are deemed to be: for the autumn term, from 1 September to 31 December inclusive; for the spring term, from 1 January to 30 April inclusive; for the summer term, from 1 May to 31 August inclusive. Therefore, teachers who wish to leave their jobs should observe the following deadlines when giving their notice: to leave at 31 December, give notice by no later than 31 October; to leave at 30 April, give notice by no later than 28 February; to leave at 31 August, give notice by no later than 31 May. It is important to note that these provisions only allow teachers to resign their posts with effect from the end of term. There is no right to leave at half term unless this is mutually agreed by the teacher and the school (see below). 23 I understand there is a policy in relation to early retirement, can I With the change in pension legislation, an employee 15

16 apply for early retirement prior to the transfer? If yes what is the process to allow me to do this? 24 What is PILON? Would we be entitled to PILON if we are made redundant? who is aged 55 and over may voluntarily leave and receive an immediate early retirement pension. However your pension entitlements may be significantly reduced if you take your pension early. You are therefore advised to ascertain your pension entitlements before making a decision. PILON is pay in lieu of notice. When an employee is giving notice to leave the employ of the council for reasons such as redundancy, the employee is entitled to notice. NCC normally require individuals to work notice, however NCC will need to consider the situation in relation to whether PILON is agreed or not in the current situation. IF however it is the new provider that brings your employment to an end, they will need to have discussions with you in relation to notice. 16