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Will TUPE block the "Big Society"?

Posted by: Simon / 17.02.2011

One of the most commonly cited examples of the "Big Society" - whatever that phrase means to you - is that of a library (presumably threatened with closure) taken over and run by volunteers. A question was posed on twitter by one of my voluntary sector clients - would the sacked librarians be able to claim that their jobs should have transferred under TUPE?

The answer is almost certainly yes - since in effect the council would be transferring an existing service to a voluntary group. The staff who directly work in the library would have to transfer to the employment of the community group now in charge of the library on their current local government terms and conditions.

However - and here is the big but - the voluntary group would almost certainly be able to rely on the "economic, technical or organisational" reasons defence to make changes to the staffing levels or numbers after the transfer. This might mean changing hours, making some staff redundant or changing terms and conditions. Provided the change relates to the "future conduct of the business" and is flagged up prior to the transfer, the voluntary group shouldn't have any difficulty making their case.

So TUPE is not necessarily a barrier to the "Big Society" proposals, though it is a hurdle that community groups may well have to overcome.

On a purely pragmatic level, local authorities tend to offer enhanced redundancy packages. Any library staff in this situation might well be advised to take redundancy from their current employer and then take up a very similar role on reduced terms and conditions with their local community run library!

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Michael N

18.02.2011

There is also the EAT case recently where if there is a “temporary cessation of activity” then TUPE may still apply.(Wood v London Colney Parish Council) - so the Library would have to be closed for a significant period to avoid it

Karl Limpert, Employment Law Clinic

17.02.2011

The ECJ ruling - http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:C:2010:063:0020:0020:EN:PDF - certainly does state that transferring an asset doesn't count for TUPE.
The ruling isn't particularly relevant for the UK though, as we have Regulation 3(1)(b) (http://www.legislation.gov.uk/uksi/2006/246/regulation/3/made) among our regulations, and this states that for a service provision change - such as the transfer of a library - TUPE still applies.

Mark Powell

17.02.2011

I'd read that there was a recent ECJ ruling that said that transferring an asset (e.g. a closed library in your article) didn't count as TUPE. Can you confirm what the current situation is?