Simply put, a TUPE (Transfer of Undertakings Protection of Employment) transfer happens when an organisation, part of an organisation, or service is transferred from one employer to another. Like redundancy, there is key legislation in place and processes that must be followed.
Organisations have been trying to find shortcuts around redundancy legislation for years, despite the fact that it is well-established, and hard on those that don’t comply. Although there is some room for pragmatism, the process is the process, and the law is the law.
When it comes to TUPE, though, it can seem a bit looser when it comes to following the process or relevant legislation.
In reviewing the latest TUPE trends, I asked an AI portal to tell me what the biggest TUPE challenges companies are facing right now are, and it suggested the following areas:
- COVID-19
- Hybrid workforce dynamics
- Brexit implications
- Data Protection Compliance
- Employee engagement and well-being
Common questions and issues
When I asked the same AI tool to tell me what the latest legislation was, it was unable to provide me with the latest key changes, which is all around consultation becoming easier.
Some of the common questions and issues I have encountered within the last twelve months, include:
- Potential client asking, “what is a TUPE transfer?” We have multiple organisations who don’t know what TUPE is. For example, a cleaning organisation wins a contract from the existing cleaning company – the cleaning staff have a right to retain their jobs with the new employer. When the new company won the contract, they didn’t realise this! Suddenly, the contract isn’t worth winning – it’s causing a loss.
- The date of transfer had already passed. It is difficult to help on a TUPE transfer that should have already happened. The only support we can really put in place at that point is to de-escalate the situation and settle down any issues that may have inadvertently been created. This actually happened!
- The incumbent company told the new company that TUPE would apply to the contract they were about to win. The transfer was likely to lead to redundancies which the incumbent offered to pay for, as long as the new company managed the process. The first challenge was actually establishing that TUPE applied. In a recent example we came across it didn’t, so the rest became irrelevant. A quick diagnosis, a few questions to the incumbent company, a letter confirming this, and we were done.
- Clients not looking to consult with all their people about the TUPE transfer but doing it “by exception.” Being pragmatic can be a great way to make life easier. If you have minimal or no real ‘measures’ associated with a transfer, why would you make it more complex and painful than it needs to be? Finding ways that keep you legally compliant, keep costs down and processes effective and efficient is sensible.
- My employer doesn’t understand TUPE and they aren’t supporting me – do you offer help to individuals? It’s typically with businesses that we provide the most value, but we can support individuals.
What are the risks of not following the proper TUPE process?
Many may think that the risks of not following the TUPE legislation are only apparent if individuals that have been wrongfully let go want to take their ex-employer to a tribunal. There is a small amount of truth in that but it’s not the full picture, and there is of course a good reason to follow the standard procedure.
Our aim is to help companies look after their people properly and make any transition as smooth as possible. TUPE transfers can be stressful for employees, leading to concerns about job security, changes in employment terms, and workplace culture. Effective communication, transparency, and support are essential to mitigate employee anxiety and maintain morale throughout the transfer process.
Organisations should prioritise employee engagement and wellbeing, offering clear communication, support mechanisms, and opportunities for open dialogue to address employee concerns proactively. The latest legislation makes TUPE transfers even easier and may mean some companies who don’t prioritise their employees can find easier ways to ‘comply,’ which means we can be even more pragmatic on how we achieve a successful transition.
If you don’t have the internal expertise, it is important to outsource it to someone who does.
Get in touch
To find out how Connor can support your organisation through a TUPE transfer project, as well as other forms of organisational change, visit our page on organisational change or give us a call on 01491 414010.
