Transferring People Into the Organisation

Matt Keeffe Group HR Manager

Transfer of Undertakings -Definition

“When the whole or part of an employer's business or undertaking is sold or transferred as a going concern to another employer, a TUPE transfer is said to occur.

A TUPE transfer may also consist of a "service provision change" whereby activities are outsourced to an external contractor, brought back in-house, or

where there is a change in the contractor carrying out such activities. The term "TUPE" is an acronym for the Transfer of Undertakings (Protection of Employment)

Regulations 2006 (SI 2006/246) (the TUPE Regulations 2006).”

Transfer of Undertakings –Transferor’s and Transferee’s

During this presentation we will be referring to the

‘Transferor’, this is the organisation the employees are

coming from; and the ‘Transferee’ this is the organisation the employees are transferring to.

Both these terms are relevant when referring to TUPE Regulations 2006 as amended.

Transfer of Undertakings –Initial Actions

Seek HR Involvement at an early stage. Ensure the transfer is agreed including date. Check that TUPE applies, points to look for change

in service requirement post transfer. Request Due Diligence called ‘Employer Liability

Information’. Transferor to advise Unions of transfer. Consider Pension Implications.

Transfer of Undertakings - Process Staff Transferring

Consultation Meetings

Requesting Due

Diligence Information

1:1 Meetings

Contracts Issued and Induction

Transfer of Undertakings – Consultation Meetings - Transferor

On notification of a transfer of undertakings, the incumbent employer, has a legal obligation to consult with employee’s as follows:

• In good time before the relevant date of transfer.• Ensure election of Employee Representatives for the

transfer (if they are not supported by a Trade Union).• Meet with the Employees or confirm in writing the

terms and conditions of employment. • Discuss any ‘Measures’ or changes as they are more

commonly known that the Transferee intends to make.

Transfer of Undertakings – Consultation Meetings - Transferee

The incoming employer on notification of a transfer of undertakings has a legal obligation to consult with employee’s as follows:

• In good time before the relevant date of transfer.• Ensure consultation with Employee

Representatives for the transfer (if they are not supported by a Trade Union).

• Meet with the Employees and discuss the transfer called a ‘Group Consultation’.

• Discuss any ‘Measures’ or changes that they intend to make. (Including any ETO reasons for change).

Transfer of Undertakings – Consultation Periods

Consultation periods depends on the number of employees transferring as follows:

• Less than 20 employees 14 days.

• More than 20 employees but less than 100 30 days.

• More than 100 employees 90 days.

Transfer of Undertakings – Group Consultations

Group consultations are the transferee’s opportunity to discuss the following with the employee’s:

• Introduction to the company background and history.

• The affect of TUPE Regulations and what that means.

• Measures as described earlier. (Including pensions).

• Answer any questions the employee’s have about the transfer.

Transfer of Undertakings – Employee Liability Information

No later than 28 days before the transfer, the Transferor must:

• Supply the transferee with the ‘Employee Liability Information’, commonly known as Due Diligence.

• The disclosure should include all terms and conditions of employment, policies and procedures that are contractual.

Transfer of Undertakings – One to One Meetings

The following is relevant to the One to one meetings:

• Check the ‘Employee Liability Information’, commonly known as Due Diligence, with the employee’s.

• Discuss training opportunities.

• Complete all transfer paper work with the employee.

• Answer any queries from the employees.

Transfer of Undertakings – ‘Getting it Wrong’

• Both the Transferor and Transferee are jointly liable

for any failings in the consultation process.

• Failure to inform and consult may result in ‘Protective Award’ of up to 13 weeks pay at Employment Tribunal, per employee.

• If new employees are not issued with Contracts and or Job Descriptions and they are subject to dismissal. This may result in an award at Employment Tribunal of up to 8 weeks pay, per employee.

Transfer of Undertakings – One to One Meetings – After Action

Do’s:

• Check all terms and conditions including overtime, retainer payments and any other contractual benefits.

• Compare bid document TUPE information with actuals.

• Query any inconsistencies via HR to incumbent employer.

• Update labour figures as appropriate, via BDM’s.

Transfer of Undertakings – One to One Meetings – After Action

Don’ts:

• Assume all information is correct.• Make any changes to contracted hours without checking

with the transferor and HR first. • Forget to include any pension liabilities. • Guess the term time calculation. • Forget to include any other payments like Laundry, retainer

pay and fringe payments. • Wait a protracted period before raising issues if information

does not match.

Transfer of Undertakings – Induction

Operations Managers are to ensure induction is arranged, to cover the following:

• Policies and Procedures.

• Health and Safety.

• Food Hygiene.

• Uniform Issue.

Transfer of Undertakings – Contracts Issued

Within 56 days of the transfer the HR department will issue:

• Contract of employment with transferred terms.

• Job Description.

Transfer of Undertakings – Summary

Ensure the consultation process is followed.

Document all meetings.

Check and re check employee liability information.

Ensure all employees receive a contract and job description.

Any Questions ?