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A service provision change happens when an employer outsources (contracts out) a service. For example, a local education authority outsources school meals to a private company which it previously provided using its own employees. The final stage is for the incoming employer to write to transferring employees to formally confirm the details of their new employment.
Most occupational pension scheme rights are completely excluded from TUPE, so pension rights do not automatically transfer with transferring employees. Employers do have to arrange certain minimum pension provision under pension legislation that is separate from TUPE. It is therefore of paramount importance that employers comply with TUPE. As it is a complex piece of legislation and much will depend on the individual facts of each transfer, legal advice should always be obtained if a TUPE situation arises or could potentially arise. This service provision change is sometimes known as contracting out or outsourcing. It also covers situations where outsourcing has already occurred but there is a change in the contractor carrying out those services.
Types of transfer TUPE applies to
If the pension rights are not old age, invalidity or survivors’ schemes, some pension obligations do transfer to the new employer. In public sector service provision situations, specific government guidance and other rules may apply as well. Consultation I was a civil servant for 11 yrs before going on mat leave - at the end of my mat leave I stupidly resigned (long story but to work for a friends new business which failed) - so after 9 months or so I approached my department about returning ? They said there were no jobs but they had a few projects they could do with some help on. Well - for the last 4 yrs I have been working at home on what they call a "short notice appointment" basis - basically I fill in timesheets to claim my pay and there is only a weeks commitment required from either party. I have been quite busy - but the projects are the dull ones that no one else wants to do and of course I am totally out of the loop !
When service provision changes happen, employees of the business (or relevant part of the business) automatically transfer to the new employer immediately before the transfer. Many organisations contract out services, invite tenders and assess bids to undertake services, and many of these situations will be TUPE transfers. It's important to understand what happens before, during and after a TUPE transfer, as well as how your employer should inform and consult you. Before the transfer happens If you have an existing occupational pension, it may not continue in the same way. This means the new employer is not obligated to make the same pension contributions on your behalf. However, any entitlements you have built up before the transfer must be protected by the new employer.
Redundancy consultation process
Employees who feel involved in the process from an early stage are less likely to resist the transfer , disrupt business activity or bring TUPE-related claims. Employers are required to provide representatives of employees affected by transfers of ownership with specific information about a proposed TUPE transfer sufficiently in advance to allow voluntary consultation to take place. An employer cannot normally impose changes - they have to be agreed by the employees or their representatives. Dismissals Transfers within the public sector are not usually covered by TUPE but some transfers from the public sector into the private sector are. However, public-sector employees get similar protection. Find out more about staff transfers in the public sector. Business transfers If your employment contract is terminated due to a transfer that substantially worsens your working conditions, your employer is considered responsible for the termination.
When dealing with employees who are in scope to transfer under TUPE and who may have rights under an occupational scheme, employers should: Both employees and self-employed workers will pay less in National Insurance from next year, Chancellor Jeremy Hunt has announced in today's Autumn Statement. The next stage is for the outgoing employer to inform affected employees via their representative to give them the required information about the transfer and any information about proposed measures received from the incoming employer. In addition, any company pension rights of the transferring employees will be protected although there is no obligation on the incoming employer to carry on the same pension.
Compulsory or involuntary liquidation of the business means that the business is forced to close by the courts. This does not count as a transfer of undertaking under the Regulations. Service changes Under TUPE, any transferring employee’s terms and conditions of employment cannot be changed if the sole or principal reason for the change is the transfer. This means that the incoming employer could acquire a sizeable number of new employees, all of whom have different terms and conditions of employment than the incoming employer’s existing employees. This could potentially lead to bad feeling between the existing employees and the new employees where, for example, the new employees are entitled to more holiday or extra benefits. Unfortunately for the incoming employer, TUPE does not allow them to amend the transferring employees’ terms and conditions if the reason for the amendment is simply to align everyone’s contracts of employment.
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