TUPE video script
Introduction
Hi, I’m Malcolm Phillips, the trainer at Acas Newcastle. Today I’m going to talk to you about TUPE.
The TUPE regulations protect employees’ rights when the business or undertaking for which they work transfers to a new employer and provide a structure for the transfer to take place.
Basically if TUPE applies an employee transfers across with their terms and conditions intact.
The TUPE Regulations were updated on 31 January 2014, during this video we will look at the implications of a business transferring to a new owner.
I’ll also tell you about the services Acas can provide and the guidance we have developed.
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So, what is a business or service provisiontransfer?
To qualify as a TUPE business transfer, the identity of the employer must change.
The regulations apply when a business is sold to a new employer, or activities are outsourced to a contractor.
For exampleSELLING SHARES wouldn’t be classed as a TUPE transfer because only the shares are sold andit continues to be the same employer.
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The regulations also cover services which have been outsourced for example security or cleaning contracts. These are called service provision changes.
However, the service must be fundamentally the same for TUPE to apply.
For example if a catering company cooking and serving hot meals loses the contractto a new service provider and they only supplypre-made sandwiches this is unlikely to be classed as fundamentally the same and therefore TUPE would be unlikely to apply.
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What happens to employees before and after the transfer?
The regulations place a duty on both the outgoing and the incoming employers to inform and consult with employee representatives regarding the transfer.
This should be done long enough before the transfer to allowmeaningful consultation.
It should cover:
- That the transfer is going to take place
- When it is expected to happen
- Why the transfer will take place
- Any implications of the transfer on employees, such as working with a new team using a different IT system,
- And, any other actions the new employer might take such as redundancies or restructuring.
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During consultation the employer must consider any issues raised by the employee reps.
Businesses with fewer than 10 employees can inform and consult directly with individuals.
Dealing with these people issues can be the most challenging part of TUPE.
In my day job I deliver Acas TUPE training to employers and a large element of the sessions are focussed on people issues.
Getting this right is critical to a successful transfer.
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This section is about the disclosure of employee liability information.
This is the information that the outgoing employer must give to the incoming employer.
It must be shared 28 days beforethe completion of the transfer.
This information will assist the incoming employer to get to know the employees they are acquiring.
The incoming employer must be given:
- the identity and age of the employees who will transfer
- the information contained in the written statements of those employees
- details of any disciplinary action or grievances raised within the last two years
- any outstanding legal issues, for example an employment tribunal claim
- information about any collective agreements.
This information should be given in a way that the incoming employer can easily access, such as an email or a data file.
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So which employees transfer?
Affectedemployees with the company immediately before the transfer will move across to the new employer.
Their terms and conditions will generally transfer across with them. There are a few exceptions to this, for example Pension Schemes may not transfer in their current form.
If you’re unsure about pensions you should speak to a legal adviser.
Generally changescan not be made to terms and conditions because of the transfer itself, even if employees have agreed to them.
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However, sometimes changes can be made where these are for:
Economic;
Technical;
Organisational reasons.
These are commonly known as ETO reasons.
For example, if following the transfer the company moves to new premises, changes working practice due to the introduction of a new IT system, or reorganises working practice for greater efficiency; that could be considered an ETO reason.
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Acas guidance on TUPE will take you through the challenges associated with a transfer, and how to get the best out of the process.
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So what if your organisation has a Collective agreement?
Collective agreements are negotiated between an employer and a trade union about matters affecting their members and other employees,
for example the process for annual pay negotiation.
Under the TUPE regulations, one year after the transfer,
employers and employees can agree to change the terms of collective agreements even though the reason for the change is the transfer itself.
Any change must not be less favourable and only those collective agreements in existence at the date of the transfer will be binding to the new employer.
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Can employees lose their jobs during a TUPE process?
Ideally theoutgoing and incoming employers will be able to minimise or prevent redundancies and other dismissals when transfers take place.
However, there will be occasions when they cannot be avoided.
If the redundancy or dismissal was going ahead regardless of the transfer then TUPE will not make any difference to this.
However if the main reason was the transfer, it is likely the dismissal will be viewed as unfairby an employment tribunal if challenged.
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Would you like to know more?
Acas offers different types of support for employers and employees on TUPE.
You can call the Acas helpline on
08457 47 47 47 or if you would prefer you can use our Helpline Online facility which allows you to type in a question for an automated answer.
We also have a range of guidance on the website or you can call 08457 38 37 36 to get in touch with our customer service team and book a training course… if you’re lucky and live in the North East of England you might even get me doing the training.