TUPE and the service contract: Going the extra mile
TUPE can seem like a daunting prospect for any organisation embarking on a service provision transfer, however, when the process is carried out to the highest possible standards it can offer significant benefits to all concerned. Pat Stringfellow MBE of Corps Security explains why going beyond basic legal compliance will result in a highly motivated and fully engaged workforce.
The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) protect employees’ terms and conditions of employment when a business or service is transferred from one owner or supplier to another. Ensuring that any changeover happens as smoothly as possible requires efficient management, cooperation and communication between the client, the outgoing and incoming service providers, and the employees. Unfortunately, this doesn’t always happen as a matter of course.
The right approach
As all HR professionals are aware, correct processes and procedures underlie everything in employment and there are basic legal measures that must be carried out to comply with TUPE. Any attempt to circumvent the process will leave an organisation exposed to legal action and should be avoided.
However, despite being legally compliant it is not unusual for employees to be viewed as commodities, or even as an inconvenience, during a TUPE transfer. In such circumstances it is no surprise that so many transfers result in dissatisfaction and animosity between the various parties, leading to deterioration in the standard of service provided.
To avoid this happening legal compliance should be viewed as a bare minimum requirement, as adopting a policy of inclusivity, communication, consultation and best practice will be rewarded with a more motivated and engaged workforce – ultimately ensuring that high levels of productivity and service provision are maintained. In effect, going beyond the ‘letter of the law’ ensures that employees are more engaged and fully motivated; so bringing distinct benefits to the organisation! A few examples – drawn from our experiences at Corps Security – serve to demonstrate this well.
The finer details
Establishing exactly which personnel fall within the scope of the TUPE transfer must be established as soon as possible and, once this is done, the transferor must prepare employee liability information (ELI) for those who are affected.
This should include the identity and age of the employees, information about any disciplinary or grievance procedures over the previous two years and their statutory particulars of employment. This is, of course, subject to a duty of confidentiality under the Data Protection Act.
However, while ELI does not have to be provided until 14 days before the TUPE transfer, experience shows this is simply not enough time for the transferee to properly plan for the transfer. It is therefore advisable to ask the transferor to provide the ELI as early as possible – and be prepared to ask the client to intervene if the current employer is tardy in providing a response.
Although TUPE states that the consultation process should be started ‘long enough before the transfer to enable the existing employer to consult the representatives’, this definition is open to a number of different interpretations. It is therefore crucial to start the process as early as possible – if it is started too late then it may not be TUPE compliant. It may also restrict the early establishment of a good relationship between the new employer and their new employee.
Proactively providing information to all relevant parties will result in benefits down the line. Businesses handing employees over are under a legal obligation to inform any affected personnel of the fact that the transfer is to take place, the date or proposed date of the transfer and the reasons behind it. They should also be informed about the legal, economic and social implications of the transfer and where there is a recognised trade union, this process can include representatives from that body.
There is joint liability between the transferor and transferee for any failure to inform and consult, so it is in both parties’ interests to make sure they comply with this obligation. In some, albeit rare, cases where the information is not provided and the case goes to tribunal, it may award up to 13 weeks’ pay to each affected employee. against the company at fault.
A personal touch
Finally, while some companies choose to carry out the consultation procedure by simply sending out a letter, this method lacks the reassurance and ‘personal touch’ that some employees welcome in such a situation. Corps Security, like other forward thinking organisations, considers it best practice to set up face-to-face meetings, followed up by a detailed letter that reiterates the points made. To ensure that the transfer is as seamless as possible it is also a good idea to produce a detailed transition plan that sets out responsibilities and key objectives for all involved.
It is important to remember that for those caught in the middle of the process – the employees – a TUPE transfer can be a very unsettling time. Therefore, not only should the new company do its best to provide them with the appropriate advice and assistance at all key stages, it should use the consultation as an opportunity to demonstrate it is going to be as good, if not better, than the existing employer. We have found that talking about issues such as training, career development and uniform, along with providing the support and visibility of senior management, helps convince personnel that their best interests are at the heart of the process.
Fact of life
TUPE is a fact of life and despite its reputation as a combative process between the transferring parties, it is ultimately designed to protect employees – something that should always be remembered. The challenges facing the various parties involved may differ, but taking the time to go beyond the basic requirements will ensure that employees are motivated, engaged and positive about their situation, while the new service provider will be confident about being able to raise standards of service. Ultimately, a smooth transfer will prove beneficial for all.
Any attempt to ‘bend the rules’ when it comes to TUPE is extremely unwise and could well result in a legal ramifications. Here’s an example of a common scenario and how Corps Security would advise that it should be handled:
Q: We have decided to change the supplier of our security services because of cost factors and the professionalism of the staff that the contractor provides to us. However, as TUPE compliance would mean that the same employees have to remain employed under their present terms and conditions, is it worth changing our supplier?
A: The simple answer is yes. When it comes to the attitude, conduct and professionalism of security personnel, this can be addressed in a variety of positive ways post-TUPE. A company that offers thorough training, good management and supervision will often get the best out of people.
If discipline and conduct has previously been an issue, any disciplinary procedures or grievance procedures will be in the ELI passed between the companies during the consultation process. If positive measures fail to have the desired impact and the problems persist, the new employer can then continue the disciplinary process until a satisfactory conclusion is reached.
The issue of cost is slightly more complicated, as under TUPE all employees must be retained under their existing terms and conditions. However, the new contractor should be able to present to the client TUPE and non-TUPE based recommendations, as well as a detailed suggestion about how the ideal service solution could be reached over a period of time.
Reducing headcount can be addressed in a number of creative and mutually beneficial ways. For instance, employees might be receptive to working on a different job, especially if it is closer to where they live, or they might welcome the opportunity to work different shifts. Employee numbers can also be reduced over time due to staff attrition. The key element here is to include the employees in all relevant discussions and communicate information on a regular basis.
Also, if there are economic, technical or organisational reasons for reducing the number of personnel on a contract, this can be carried out as long as a correct redundancy consultation process is followed. But beware – it is mistakenly believed by some that TUPE has a time limit. Whether TUPE has been flouted one day or one year after the transfer date then the same penalties apply, so it is important to abide by the rules.
For further information please contact Corps Security on 0207 566 0500 or E: firstname.lastname@example.org