TUPE 101

If the mere mention of TUPE is enough to make your blood run cold, then you are not alone. It can be complex.

Even within the HR community there is lively debate as to what falls inside and outside of TUPE.

This is definitely a topic where proper due diligence is vital and developing case law shifts the goal posts, frequently.

TUPE regulation requires careful compliance. Failure to conform can cause brand damage, a disengaged workforce or result in an employment tribunal. In normal instances, we know when we’ve entered into a risk scenario and have assessed it, but the complexity of TUPE means that sometimes we simply don’t know we’ve broken the rules until it is too late (or even that they applied in the first place).

So here are some key points to be aware of in a potential TUPE scenario:

✔️ Outsourcing and insourcing

When you change the provider of an outsourced service, the individuals who deliver that service may be protected by TUPE.

So, if you are bringing a service back in-house or changing the provider, you should expect the individuals who provide the service to move with it.

You may also have obligations to your employees to consult them properly if you are outsourcing a service that is currently in-house.

✔️ Who is likely to be protected?

Any individual who is employed to provide a service by a providing company, or any employee whose organisation (or employing part of an organisation) is being transferred.

Don’t fall into the trap of believing that the individual needs to meet a certain % threshold of service provision to your business, it’s a misconception that catches people out and fragmented TUPE may apply.

TUPE is a day 1 right, so all individuals employed at the date of transfer are likely to be protected. Also beware of the ‘worker’ status as they may also qualify!

✔️ What is protected?

Individual’s employment terms are protected in a transfer scenario, and this goes beyond pay, length of service, holiday and pension rights.

You’ll need to consider whether employment terms are reasonable, certain and notorious, in order to assess whether they fall within TUPE regulations.

If your transferring teams are calling to protect their annual Christmas jumper day, you’ll have to take it seriously if these markers are present for TUPE.

✔️ When does TUPE cease to apply?

If your transferred employees are offered alternative roles in your business which are unrelated to the transfer, for example as career development or promotion, then it is worth remembering that they will be signing up for new contractual terms and, at that point, TUPE ceases to apply.

✔️ When doesn’t TUPE apply?

If transferring employees prefer not to transfer, then they should give notice to their existing employer as normal, before the transfer. Also, where there is a simple shareholding transfer and not a change in employer, it’s unlikely that TUPE will apply.

✔️ How can you ensure you are compliant?

You’ll want to call upon the brilliant and updated resources available to us as HR practitioners: there is thorough guidance from ACAS, CIPD and a host of employment lawyers online.

However, you may also consider calling upon the expertise of an HR consultant to oversee and mentor you through the process.

Not only will they be able to provide peer support for your planning and preparation, but also give you peace of mind through their lived experiences and employment law knowledge. They will also add value to your transition process as well.

Takeaway:

TUPE is a serious subject requiring strict due diligence, compliance and conformance. If you want to maximise success in delivering a TUPE project, then meeting minimum standards isn’t enough. For unbiased, experienced and knowledgeable support, your HR consultant can guide you through the process, so you can either focus on business as usual or approach the project with full confidence.

Talk to us about how we can help support you to deliver against strategic or complex business matters where your success matters.