The TUPE transfer process, what you need to know and why it isn’t as daunting as it might seem.

For many schools looking to take their catering service in house, Transfer of Undertakings (Protection of Employment) Regulations – (TUPE) process can seem a daunting prospect. We look at the steps necessary to ensure a smooth transfer over of the catering staff to the school team.

Why TUPE?

The purpose of TUPE is to protect employees when the business which employs them ceases to provide the service provision to a company or organisation, but the service provision, which will have the same or very similar specification, is to be provided by another company or organisation.

Transfers within the public sector aren’t always covered by TUPE. An example in the school meals industry would be if a Council is the existing employer and a school (new employer) is a community school, whose employer is still the same Council. This is known as a “business transfer “.

If council employees were transferring over to an Academy or a Multi Academy Trust TUPE would apply.
However, there is always an expectation that in these situations the principles of TUPE will be applied and the right to employment protection is maintained.

TUPE Steps

Step one – when an organisation (new employer), in this case an Academy or School has informed the current provider that they are terminating or not renewing the contract, they can request TUPE information and due diligence information from the current employer. It is essential for the new employer to know of any employment liabilities which arose before they become the employer and which they might inherit and also to be able to consider the existing rates of pay, pension arrangements etc.

The previous employer has by law to provide the following information to the new employer at least 28 days before the transfer:

• identity and age of each employee
• particulars of employment
• details of any disciplinary or grievance procedures during the last 2 years
• pension arrangements
• additional benefits such as life assurance schemes, bonuses
• details of any collective agreement which applies to the employee

It’s also important that the new employer gains assurances from the existing employer that no changes can be made to the supplied TUPE information once supplied, without prior agreement. We would advise that the school requests a letter of indemnity from the previous employer to guarantee that the TUPE information is correct and in full.

CMC have a letter template and due diligence templates that can be issued to the existing employer to request the information required .

Step two – The employer who is losing the business must consult with the affected employees. They must inform them of the legal impact on their employment rights and any proposed changes that the new employer is proposing to make after the transfer is completed. The consultation period should be meaningful, but may also be dependent on any collective agreements that the existing employer has with trade unions.

Employees must be consulted on any “measures” that may affect their future employment. For example; a change to the pay date each month, different shift pattern, change of pension provider.

Employees can refuse to work for a new employer. This would in effect mean they are resigning- they wont normally be able to claim unfair dismissal or redundancy as there is a job for them at the point of transfer, they are choosing not to take that job.

They don’t have to give prior notice, they can simply tell the employer or new employer, before the transfer happens. Employment then ends at the time of transfer.

Should the existing employer wish to offer alternative employment to an employee they can, but the existing employer has no obligation to do this.

Under TUPE , the new employer takes over the employees contract, including :

• all previous terms and conditions of employment
• holiday entitlement and paid weeks
• period of continuous employment
• any collective agreements previously made

Before the transfer

The incoming employer cannot make changes to an employees terms and conditions prior to the transfer – even if the employee agrees to the change.

Can we make changes to the employees terms and conditions after the transfer?

A new employer can’t change an employee’s terms and conditions if the reason is the transfer itself.
However, an employer can make changes to the employee’s terms and conditions if there is an ‘economic, technical or organisational’ (ETO) reason for doing so.

• “Economic” reasons are to do with how the company / contract is performing
• “Technical” reasons are to do with the equipment or processes the company uses
• “Organisational reasons” are to do with the structure of the company.

When a school/academy takes over the employment of the staff there are often positive changes. For example, improved pension schemes, harmonising paid weeks and pay rates, but this can come at an additional cost, hence the need to have all the TUPE correct and checked to be able to budget plan effectively.

A business case will need to be prepared and the reasoning and rationale if there is the intention to propose changes to an employee’s terms and conditions.

These changes should be consulted on post transfer, in conjunction with trade union representatives.

Here at CMC we frequently support schools and academies during their TUPE process, but would also recommend that advice is sought from their HR provider before initiating the process.