TUPE policy

Policy overview

We commit to honouring our responsibility to: 

  • protect employee rights during a transfer  
  • apply the requirements of the Transfer of Undertakings (Protection of Employment) Regulations 2006 as amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014  

TUPE is the commonly used acronym for this legislative framework. The primary purpose of the regulations is to: 

  • preserve the continuity of employment 
  • preserve the terms and conditions of employees transferred to a new employer  

We commit to: 

  • consulting with affected employees 
  • providing information promptly on any changes that affect employees 

We recognise that a change of employer can be an unsettling time. We understand the importance of providing information to help to support employees through the process.  

We commit to working closely and collaboratively with employees, whether: 

  • we are transferring them to another employer 
  • or, receiving them from an employer 

We want to enable the transfer process to be undertaken effectively and efficiently.  

TUPE is a complex area of law, and we will give appropriate advice and consideration to all matters to achieve a smooth transition.  

Principles 

In addition to complying with TUPE legislation, we will:  

  • encourage the full involvement of our people 
  • ensure we provide employees affected by the change with assistance to enable them to make informed decisions 
  • ensure that the most robust possible consultation and provision of information with recognised trade unions and any other representatives takes place in a planned and properly managed process 
  • provide clarity as soon as reasonably possible concerning whether or not TUPE applies 
  • ensure that we maintain effective communications 
  • ensure the full involvement of HR and Legal Services to support all aspects of a transfer and TUPE considerations 

When does TUPE apply?

TUPE applies to a relevant transfer in two circumstances:  

  1. a business transfer – when a business, or part of one, transfers from one employer to another as a going concern 
  2. a service provision change – this can include: 
  • outsourcing – where an organisation engages a contractor 
  • second-generation outsourcing – retendering or re-assigning a contract to another contractor 
  • insourcing – taking work back in-house 

A transfer can fall into both categories. For example, where there is both a business transfer and a service provision change at the same time.  

In transfer situations: 

  • the new employer is the 'transferee' - we refer to this as the 'recipient'.  
  • the old employer is known as the 'transferor' - we refer to this as the 'sender'   

The legislation puts requirements on both the recipient employer and the sender employer throughout the transfer process.

What is covered by TUPE? 

TUPE protects: 

  • the employment contract 
  • any rights, responsibilities and liabilities associated with the contract and the employment of individuals 

These can include:  

  • terms and conditions of employment 
  • continuity of service 
  • employment law claims made by transferring employees as a result of acts or omissions by the transferor 
  • collective agreements 
  • trade union recognition 

Once it is established that TUPE applies, we will determine which employees are affected. We will provide employees, their representatives and the new employer with information.  

The existing employer must provide information to the recipient about the employees affected. This is via a process known as the provision of Employee Liability Information (ELI). It is provided as part of the due diligence process.  

The provision of information about employees is carried out within the requirements of the Data Protection Act 2018. All parties will protect the integrity and confidentiality of the data provided.  

The recipient employer may propose to make changes that affect incoming employees, where there is an economic, technical or organisational (ETO) reason.

Any such proposals are subject to consultation through the TUPE process, being notified as measures with the affected employees and their representatives.  

Pension schemes are generally excluded from TUPE protection. They are governed by separate legislation which may require us to provide a broadly comparably scheme including:  

  • the Transfer of Employment (Pension Protection) Regulations 2005  
  • the Pension Act 2004 

They are not required to mirror the previous pension provisions. Some benefits under occupational pension schemes are specifically not covered and will therefore not transfer.  

Each case concerning pension provision is different. We commit to reviewing all entitlements and legislation to ensure the minimum requirements are met in a transfer situation. We will also ensure compliance with any requirements under the auto-enrolment regime.  

Employees have a right to: 

  • object to a transfer  
  • refuse to transfer 

Where this is exercised, the employee's contract generally comes to an end at the point of transfer. They are deemed to have resigned.

Employees transferring to us

In a situation where we are the transferee or recipient employer, we commit to:  

  • take over the contracts of employment of all the employees who are in scope of the transfer 
  • in respect of transferring employees, take over all of the: 
    • rights 
    • powers 
    • duties 
    • liabilities (apart from where an agreement regarding liabilities has been put in place with the transferor) 
  • take over any collective agreements. This includes appropriate recognition agreements applicable to employees transferring. We will not apply any post-transfer collective agreements 
  • make information available to workers' representatives and the transferor 
  • consult workers' representatives on matters related to the transfer 
  • ensure that all information that we require is provided to: 
    • continue to pay and manage employees transferred to us under TUPE 
    • ensure that they carry out the work required of them 

In line with TUPE regulations, we require employers seeking to transfer employees to: 

  • complete a due diligence questionnaire 
  • provide statutory information

Employees transferring from us

In a situation where we are the transferor or sender employer, we commit to:  

  • transferring affected employees who are employed in the undertaking at the time of the transfer: 
    • on their existing contracts of employment (except for those dismissed for economic, technical or organisational reasons entailing a change in the workforce)  
    • on the same terms and conditions as we employed them 
  • ensuring a pension scheme which is broadly comparable to our scheme is provided to employees transferring. Pensions are considered and included as part of the pre-tender process 
  • ensuring the recipient employer takes over all of the:  
    • rights 
    • powers 
    • duties 
    • liabilities, in respect of employees transferring to it 
  • ensuring the recipient employer takes over any of our collective agreements. This includes recognition agreements applicable to employees transferring 
  • along with the recipient employer, making information available to workers' representatives and consulting with workers' representatives on matters related to the transfer 
  • providing all information to a future employer to enable it to: 
    • continue to pay and manage staff transferred from us under TUPE 
    • ensure employees transferred can carry out the work required 

We will:  

  • complete any due diligence questionnaire supplied by the recipient employer 
  • provide statutory information as required by the TUPE regulations