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TUPE - a lot of fuss about nothing?

Posted by: Simon / 24.01.2012

TUPE is difficult, complex, needs a very expensive lawyer to guide you through it, and stops businesses doing what they want to do. That's the common view but it's WRONG. Here are some facts:

  1. The aim of TUPE is simply to protect employees from losing their jobs, employment benefits and legal rights through a change in employer that they have no control over.
  2. It applies where an existing business or service transfers from one organisation to another. It doesn't apply if a business just gets a new owner, or if a new service is different to an old one.
  3. In a TUPE situation you have responsibilities to consult with staff and their representatives, and to provide information at various points. That may be time consuming but it isn't difficult - and requires only basic project planning skills
  4. You can make changes after a transfer - including redundancies if you need to - provided you have a valid business reason (known as an economic, technical or organisational reason). It has long been established that reduced income from a client or funder is a valid economic reason.
  5. If there is a dispute about whether someone should be transferred (known as assignment) there are clear guidelines about how you decide this. It's not impossible for an old and new employer (or an employee) to disagree on the answers but the questions to be asked are very straightforward.
  6. Pension schemes don't transfer as of right. There are however rules under the Pensions Act that require a new employer to provide a minimum standard of pension to transferring staff who were previously in a pension scheme.
  7. Public sector workers are covered by guidelines called the "Fair Deal for Pensions" under which they must be provided with a pension which is broadly comparable to their public sector scheme if they are transferred to a private or voluntary sector organisation. This is a piece of government policy (dating from 1999), nothing to do with TUPE.

It's possible to debate the fine nuances of TUPE - for many HR/Employment Law people it has become the equivalent of "How many angels can dance on the head of a pin?" But practical TUPE problems come more from a lack of co-operation between new and old employer than the legislation itself.

You can find out more here

 

 

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Peter Savage

25.01.2012

TUPE is not as complicated as many make out. However there's a danger that in their rush to be seen to be doing something about red tape the Government will make it less clear thus leading to more confusion and tribunals

Alex Wilson

25.01.2012

Your points are interesting but one area you do not address is the requirement to provide staff information only 14 days before transfer. We won a contract last year and although the tender documents gave an indicative outline of the TUPE commitments, when we received the employee information 2 weeks before taking over the contract we found we were inheriting staff with far greater employment liabilities for us. At that point it was clearly too late for us to reconsider the contract award and we had to take them. However, had we been simply taking over another company we would have done a proper due diligence exercise and been aware of what we were letting ourselves in for - and made a commercial decision about whether we wanted to continue. Under TUPE we don't currently have that option.