Managing Workforce Change: Transfer of Undertakings (TUPE) P r o c e d u r e This procedure should be applied where there is a transfer of work from one employer to another. The procedure covers the following areas: 1. Identifying a Transfer Situation 2. Considering the Implications 3. Consultation 4. Communicating with Employees and Trade Unions 5. Liaison with the Transferee 6. Providing Information to the Transferee 7. Employee Transfer 8. Related Policies, Procedures and Guidance 9. Support for Managers The Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended in 2014) (referred to as TUPE in the rest of this document) is the main piece of legislation governing the transfer of an undertaking, or part of one, to another. The regulations are designed to protect the rights of employees in a transfer situation enabling them to enjoy the same terms and conditions, with continuity of employment. The TUPE Regulations will apply in the following situations: (a) a transfer of an undertaking, business or part of an undertaking or business where there is a transfer of an economic entity which retains its identity: (b) A service provision change e.g. where a contract to provide a client (public or private sector) with a business service is: awarded to a contractor (contracted out or outsourced) re-let to a new contractor on subsequent re-entering (reassigned); or ended with the bringing in-house of the service activities in question ( contracted in or in-sourced ) TUPE is an extremely complex area of employment law and guidance from Legal Services, Human Resources and Procurement & Supplies should also be sought in advance of any service decision being made. Fife Council June 2011 Page 1 of 10 MC70
In applying the provisions of this procedure, the Council is committed to ensuring that: All matters relating to employees whether or not they transfer, are considered and actioned in accordance with the Council s Equality of Opportunity Policy; All employees who transfer from or into the Council do so with the protection of TUPE; Meaningful consultation and communication takes place with employees and Trade Union representatives, in accordance with statutory requirements and good employee relations practice; Affected employees and their representatives are aware of proposals and decisions prior to any public announcement; The outcome of the selection process for transfer is fair to all parties and subject to full consultation; The Trade Unions are consulted if any matters arise which are not provided for in this agreement, with a view to agreeing how the matter will be dealt with. The Council recognises and is committed to its legal obligation to consult employees and Trade Union representatives about proposed transfer situations. In support of this, the Council is committed to the disclosure and sharing of information with Trade Union representatives so they may effectively represent their members. Consultation will commence at the earliest opportunity once the potential for a transfer has been identified. The TUPE Regulations do not define a specific timescale for consultation, however the time provided for the formal consultation stage must be long enough for consultation to be meaningful and allow sufficient time for Trade Union representatives to consider the proposals. Fife Council June 2011 Page 2 of 10 MC70
The following sections provide a more detailed summary of each of the key steps in the TUPE process. Transfer situation identified Implications considered Consultation with employees/ Trade Unions Final communication to employees/trade Unions Liaison with receiving organisation (transferee) Compilation and provision of employee information to receiving organisation Employee Transfer Fife Council June 2011 Page 3 of 10 MC70
1. Identifying a Transfer Situation The Lead Senior Service Manager with support from other Managers, Legal and HR will confirm that a transfer situation covered by the TUPE Regulations has been identified. Advice will be sought from Procurement regarding procurement/ tendering requirements. Consultation with the Trade Unions will commence at the earliest opportunity once the potential for transfer has been identified following development of the supporting business case. 2. Considering the Implications Proposed transferring employees identified Identification of employees for transfer will be carried out in a fair, consistent, objective and non-discriminatory manner, in accordance with the Council s Equality of Opportunity Policy. To identify the proposed group of employees for transfer reference will be made to a range of factors, including, for example: The amount of time spent by the employee working in the transferring part of the Service; The duties undertaken by the employee; and How the cost to the employer of the employee s services is allocated between different parts of the Service. From the above information, a TUPE list will be compiled of employees identified for transfer. The list is not intended to be exhaustive and as a general principle the identified transferring employees will include those employees who spend at least 50% of their time working in the undertaking which is to transfer. At this stage, preparatory work should begin on the rights and obligations associated with the employees who are to transfer including, for example: The identity and age of the employees who will transfer Information contained in the employees written particulars of employment The Council will consult with the Trade Unions on the proposed group of employees identified for transfer. An initial assessment of the implications of the transfer on the affected employees will be completed to determine impact from a legal, economic and social perspective. An initial assessment of the impact of the proposals will also be conducted using the Council s integrated impact assessment tool. The Lead Senior Service Managers with support from relevant Service and/ or Team Managers and HR will be responsible for completing the initial assessment. The assessment will consider impact on employees affected as well as service users. Fife Council June 2011 Page 4 of 10 MC70
3. Consultation with employees/ Trade Unions Prior to consultation commencing, the Council will formally notify the Trade Unions that a transfer is proposed. The following information will be shared with the Trade Unions: 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 the measures that the employer expects to take in relation to the employees the business case for the proposed TUPE transfer the proposed list of transferring employees the proposed project plan and timeline (including confirmation of the process to be followed to identify the new service provide); and support arrangements for affected employees e.g. employee counselling service The purpose of the formal consultation period will be to discuss: The financial background for the need to transfer Alternatives considered by the Council The initial TUPE list of employees to transfer The impact of the proposed changes on employees and service delivery arrangements The proposed timescale for the transfer Where available at this stage: o Information about the new employer o Information about terms and conditions of employment and pension o arrangements of the transferee Information about any measures that the receiving organisation is envisaging to take in relation to the employees in connection with the transfer Employee rights in a transfer situation Confirm the commencement of the formal consultation stage, including relevant timescales and dates Overview of next steps and the process to be followed, including when individuals will be informed of their position and the opportunity for individual discussions and the tender/procurement process to be followed Assistance available to affected employees, e.g. employee counseling service Whilst there are no timescales stipulated in the TUPE regulations, consultation should commence long enough before a transfer to enable the existing employer of any affected employees to consult the appropriate representatives. As part of the consultation process views will be sought on the impact of the proposed transfer from an equalities perspective. The Council will work with the relevant Trade Union representatives to identify any potential adverse impact on particular groups within the identified pool and explore options for removing or mitigating this impact, where appropriate. During the formal consultation stage, Lead Service Managers should consider specific arrangements to ensure employees who are absent from work e.g. because they are on maternity leave, sick leave, secondment or a career break, are briefed and Fife Council June 2011 Page 5 of 10 MC70
consulted on the proposals. Advice and guidance should be sought from Human Resources regarding the appropriate approach depending on the particular circumstances and the reason for the employee s absence. The employees affected by the transfer will receive the following information confirmed in writing: Their role has been identified as one which will transfer from the Council The implications for the employee Their right to request a review of their inclusion on the TUPE list Their signed consent to share personal data with a potential new employer TUPE list reviews A right of review against inclusion on the TUPE list will be available to employees who have been assessed as spending at least 50% of their working time in the affected service area. The purpose of the review process will be to provide those employees with the opportunity to challenge the assessment where they feel able to demonstrate that their working time in the affected service area is actually less than the 50% threshold for TUPE. Employees who clearly spend all of their time or the majority of their working time in the affected service area will automatically be included on the TUPE list and will have no right of review against this. Employees wishing to have their proposed inclusion on the TUPE list reviewed should lodge their request with the Executive Director Finance and Corporate Services, copying the relevant Head of Service, within 5 working days of their individual consultation meeting. This timescale may be extended by agreement between management and the Trade Unions. Where an employee(s) requests a review or indicates an intention to do so, management and the Trade Unions will consider the circumstances of the case to establish if the issue can be resolved without progressing to a formal review hearing. Reviews will be undertaken by a TUPE List Review Panel comprising a representative from the Service Senior Management Team, HR and the local Trade Union representatives. The Panel will review the data presented and may request the presence of the employee and/or the assessing manager to provide further information. Throughout the formal consultation process Trade Union representatives and employees will have the opportunity to comment on the proposals within an agreed timescale. Further meetings may need to be arranged as a result. 4. Final communication to employees/ Trade Unions At the end of this consultation period the Council will agree with the Trade Union representatives that the consultation period has been completed and will confirm the outcome. At this point if the decision is that the transfer will take place, individual employees affected will be notified that they are to be transferred in writing. Individual letters for any employee who has indicated that they do not wish to transfer will also confirm: The employee has indicated that they do not wish to transfer; On the date of the transfer their contract of employment will not transfer to Fife Council June 2011 Page 6 of 10 MC70
the new organisation; and They will be deemed to have resigned from the Council s employment. When the final details of the transfer have been agreed, the written confirmation forwarded to all employees to transfer will include the following information: Details about the new employer; Confirmation of when the transfer will take place; and Confirmation of terms and conditions of employment and pension arrangements. If the tendering/ procurement or other process to identify the new service provider has yet to be completed, employees to transfer will be advised in writing that further information regarding their new employer will be forwarded following conclusion of this process. Tender/Procurement Process If not already commenced or completed by this stage, the Council will begin the tender/procurement process to identify the new service provider. Advice and support will be sought from Procurement & Supplies. Human Resources will work with Legal Services and Procurement & Supplies to support Service Managers to develop the contract and tender documents and supporting project plan, as well as to ensure the correct procedures are followed. 5. Liaison with the receiving organisation (Transferee) Once the contract has been awarded more detailed information will be exchanged between the Council and the new employer in accordance with TUPE. Once the new service provider (transferee) has been selected, Human Resources will support the Lead Service Manager(s) to facilitate regular joint meetings with the new Service provider to cover such issues as: Staffing Transfer of staff records Timescales Terms & conditions of employment Pension arrangements Issues arising from contracts of employment The new employer will take over the liability for all statutory rights, claims and liabilities arising from the contract of employment, for example, unfair dismissal and discrimination claims. The exception to this rule applies to criminal liabilities. The Council will liaise with the new employer in relation to the employees transferring. This will include discussion regarding issues such as: disciplinaries, capability cases, long-term sickness absence cases, any claims or potential claims which could progress through an Employment Tribunal. Appropriate legal advice will be taken. As soon as final details of the transfer have been agreed, written confirmation will be sent to all employees affected with details of the new employer, confirmation of terms and conditions, pension arrangements and timescales. Fife Council June 2011 Page 7 of 10 MC70
6. Transfer of employee information The Council is obliged to give the transferee written information about the employees who are to transfer and all the associated rights and obligations towards them. The information includes, for example: the identity and age of the employees who will transfer; and information contained in the employees written particulars of employment and details of any claims that the Council reasonably believes might be brought. The information provided by the Council to the transferee will be provided at least 28 days prior to the transfer. Reference should be made to the Individual TUPE Information Form for a full list of the information required. 7. Fife Council as the Transferee Where Fife Council is the receiving organisation in a TUPE situation, support should be sought from Human Resources and Legal Services as early in the process as possible. A Lead Service Manager should be nominated as the main point of contact with the transferring organisation. An HR contact will also be nominated to provide dedicated support. Preparatory work may involve attendance at consultation meetings with transferring employees and this will be discussed and agreed with the transferring organisation before the consultation process begins. The key steps in the process which will ensure the Council fulfills its legal obligations are summarised below: Fife Council June 2011 Page 8 of 10 MC70
Transfer situation identified Implications considered Consultation with transferor s employees/ Trade Unions Employee information gathered Communication to transferor s employees/ Trade Unions Employee transfer Welcome & induction Information should be requested from the transferring organisation as early in the process as possible. The TUPE Regulations require that the current terms and conditions for employees continue after the transfer to Fife Council. The required information includes: pay arrangements (method and date) payscales/ increments hours of work, including any flexi scheme in operation annual leave entitlements changes to place of work/ travel arrangements confirmation of whether relevant pre-employment/ Disclosure checks/ entitlement to work in the UK have been completed confirmation of whether there are any liabilities to transfer e.g. personal injury claims or claims for discrimination any outstanding employee relations issues, e.g. discipline, grievance, capability, ill-health cases etc If any changes to existing terms and conditions are considered to be necessary a summary of the changes, and the supporting business case, should be included in the consultation documents distributed by the transferring organisation. These changes must be justifiable for either an economic, technical or organisational reason. Legal Fife Council June 2011 Page 9 of 10 MC70
advice should always be sought prior to proposing any changes to the current terms and conditions of employment of the transferring employees. Following the end of the consultation period, the lead Service Manager, with HR support, will ensure the following employee information is received no later than 28 days before the date of the transfer: organisational structure information terms and conditions information the identity and age of the employees who will transfer; information contained in the employees written particulars of employment and details of any claims that the Council reasonably believes might be brought personal files As the transferee (receiving organisation), the Council will take over the liability for all statutory rights, claims and liabilities arising from the contract of employment for transferring employees. The Lead Service Manager, with support from HR, should liaise with the transferor to ensure appropriate due diligence in relation to transferring employees in undertaken. These discussions should cover issues such as: disciplinaries, capability cases, long-term sickness absence cases and any claims or potential claims which could progress through an Employment Tribunal process or civil court. The Lead Service Manager will be responsible for ensuring a welcome letter is produced and distributed to all transferring employees. An initial induction meeting, or other appropriate induction arrangements, for employees transferring in should also be arranged. 8. Related Policies, Procedures and Guidance The following additional Policies, Procedures and Guidance should be read in conjunction with this Procedure: ER01 Early Retirement Policy for Single Status, Chief Officer and Craft Employees MC40 Managing Workforce Change Redundancy Procedure MC41 HR How to Consult for Redundancy Purposes MC42 HR How to Conclude the Redundancy Process MC43 Redundancy Process Model Letters and Forms MC44 HR How to Select Volunteers for Redundancy MC45 HR How to Select for Redundancy Purposes (Compulsory) MC46 Redundancy Selection Model Forms MC50 Managing Workforce Change Redeployment Procedure MC51 HR How to Redeployment MC52 Redeployment Model Letters and Forms 9. Support for Managers A range of training sessions have been designed to support managers throughout the change process. Further details on the sessions and booking information are available on FISH and FifeDirect. Produced by Fife Council Human Resources Section January 2015: Issue Number 1.3 Fife Council June 2011 Page 10 of 10 MC70