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TUPE - The Transfer of Undertakings (Protection of Employment) Regulations

TUPE can apply:

(1) when a Council provided service (usually catering or cleaning) is replaced by an external contractor; or

(2) where the school decides to bring a service in-house which has previously been provided by the Council or an external contractor; or

(3) when there is a change in an external contractor.

Transfer of staff may be First-Generation or Second-Generation:

First Generation transfers are where the school is currently undertaking delivery of the service and intends to transfer delivery to another organisation (public or private) OR where the school takes on a service it has not previously delivered and existing staff from the current provider transfer to the school;
Second Generation transfers are where the school commissions a service from one organisation and considers that the service delivery may transfer to another organisation (including itself).

Failure to comply with the requirements of TUPE may lead to legal action against the Council. If a department considers transfer of staff may occur in any form, legal advice should be sought before any change commences.

TUPE in Tendering

The school will need to decide whether there is any requirement for staff transfer before any tendering, retendering or outsourcing process commences. Information about staff currently providing the service will need to be included if TUPE may apply to the contract, and bidders will be required to respond with information relating to the possible staff transfer.

Legal advice will be needed at an early stage in the tendering process.

Where a contractor does not appreciate the implications of TUPE it may be appropriate to draw its attention to the effect of TUPE particularly if it is not approaching the task of providing for elected staff representatives or recognised unions information relating to proposed measures in an adequate way. Where it seems that the successful bid on a TUPE basis is not sufficient to enable the contractor to meet the obligations under TUPE, there may be grounds for treating the bid as an abnormally low bid.

Staff Consultation and Involvement

TUPE requires that the information and consultation process begins far enough in advance of the transfer to enable consultation to take place. Contact with staff and elected staff representatives or unions should be established at an early stage.

The obligation is on the council to inform its recognised unions (or the elected staff representatives) of the implications of the transfer and, where it proposes measures for its employees who are transferring or other affected employees, to consult with a view to seeking agreement. Written records should be kept of meetings and information supplied by the council and the date when these events occurred. Information received from a transferee should be relayed without delay to the elected staff representatives or recognised unions, as the case may be.

If transfer of staff may occur in any form, seek legal advice.

amended CG 9.10.08

Documents

Catering/cleaning flowchart

TUPE Detailed Guidance

TUPE request for information form

BERR guide to TUPE

Links (External)

cipd TUPE guidance

BERR TUPE information

DirectGov TUPE guidance

Contacts