Simplifying the mystery that is TUPE legislation in the service sector
If you are employed in or deal with the outsourcing, workplace services or facilities management industry, then chances are you will have come across TUPE before. You might deal with it every day and feel well versed in its principles or your heart might sink at the very mention of the word!
It’s topical right now, as there is speculation about what may happen with regards to TUPE post Brexit. It’s a complex piece of legislation, accused of being uncommercial and unyielding at times and in my humble opinion it may face modifications in the future, but a full repeal of legislation that has been embedded in UK business and industry for the last 30 years seems unlikely to me.
But what is it? Well to go all text bookie, TUPE refers to the "Transfer of Undertakings (Protection of Employment) Regulations 2006" as amended by the "Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014".
There are times when it does and does not apply, but a detailed view of it is not the intention of this piece! Essentially the TUPE regulations can apply when a company is sold, service activities are outsourced, brought in-house, transferred or a contract for services is moved from one provider to another. Hence why it’s a day-to-day element of the workplace service and facilities management world. Employees working on said service or contract will transfer automatically to the incoming provider with a full protection of their terms and conditions of employment (aside from occupational pensions) and their continuity of service.
TUPE applies to the private sector, the public sector and the third/not-for profit sector and, Government figures suggest that up to 50,000 transfers take place each year with between 1.4 and 2 million employees affected. It’s little wonder that ACAS report that between 3%-4% of their annual helpline calls are about TUPE.
It’s a huge aspect of the sector, with service contracts moving from one provider to another if tenders and re-bids are lost or allocated to another provider, if current performance is an issue. It can affect service teams, contact centre staff, cleaners, security guards, catering assistants, grounds staff, maintenance staff, receptionists, administrators and the list goes on. It is complex, but manageable when broken down into smaller chunks and its imperative to get it right – the implications of not doing so are big and costly with attendance at tribunals and unfair dismissal pay-outs.
For me it’s all in the planning – with a solid TUPE and communications plan a transfer can run smoothly even with unions involved! It’s important to start the process the moment you think TUPE may apply; both commercially and communication wise. From engaging unions if applicable, to setting up representative elections for the affected staff right through to collating employee liability information and due diligence findings. Prepare a TUPE toolkit to include commercials, due diligence, contracts and liabilities, information, consultation and communication, measures (possible changes you might make to employment arrangements after the transfer, such as a change to a pay date), transfer day logistics, employee induction and plans for newly integrated team’s assimilation.
Communication is also key whether you are transferring employees out of or into your organisation. For the incoming employer, building the trust of the people who are transferring to your organisation is fundamental; allocating time for them, displaying empathy and understanding and being respectful is vital here. Setting up key meeting and touch points for employee discussion and involvement is a must; consider group and 1-2-1 communication avenues, workshops and even drop-in clinic sessions and allow for more than one for each person. Remember no one really likes surprises!
TUPE should be thought of as something that extends beyond compliancy and a potential barrier to bid or re-bid for a contract. It can also be a highly positive activity, sometimes employees transfer and benefit from enhanced terms and conditions, better chances of progression in a new organisation and possibly the chance to move away from working on a failing contract!
So, don’t leave TUPE to good luck or chance. You don’t have to; at Enlight Group our management team have a very successful track record in transferring people seamlessly into service operations. If you are considering a change of facilities service provider or outsourcing for the first time, then do please get in touch.
About the Author:
Frank Rodriguez is Executive Chairman of Enlight Group and has over 30 years of experience in the outsourcing and facilities management sector having worked globally for leading service organisations. He has won numerous business awards in this field, including the prestigious National Entrepreneur of the Year, FT Fast Track and European Hot 100 awards. He has pioneered co-sourcing as a ‘next generation’ integrated service solution and has chaired numerous industry or academic forums for outsourcing, workplace services, facilities management and associated service technology.
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