TUPE — a four letter word, used to protect, not offend.
Whilst many four-letter words can cause offence, the appearance of the word TUPE, often hidden away within a set of attractive and welcoming tender documents, can cause panic and alarm amongst those who are inexperienced and lack understanding of this protective legislation.
Often, the authority releasing the documents has added to existing uncertainty by using phrases such as “TUPE transfers may apply” or “the contracting authority does not expect that TUPE will apply”. Usually, the tenderer will be required to accept terms and conditions which give them total responsibility, and full liability, for complying with TUPE regulations, and this will be non-negotiable.
But what is TUPE, and are people right to be so scared at the very thought of it?
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“. These rules apply to organisations of all sizes, and protect employees’ rights when the organisation or service they work for transfers to a new employer.
When TUPE applies, the employees of the outgoing employer automatically become employees of the incoming employer at the point of transfer. They carry with them their continuous service from the outgoing employer, and should continue to enjoy the same terms and conditions of employment with the incoming employer, however generous these may appear. The new employer can propose measures to amend their terms and conditions, but must do so with extreme caution. For most employers, no changes will be proposed for at least a year, to avoid the risk of employee litigation.
Employees who believe that their terms and conditions have been substantially changed to their detriment before or after a transfer have the right to terminate their employment and claim constructive unfair dismissal at a tribunal. The tribunal will base their decision on the facts, but also inevitably these decisions involve opinions and interpretation, so there may be valid concerns amongst businesses even when they believe they have acted fairly.
So, what should an SME business do when they receive tender documents containing TUPE information?
Firstly, review all the TUPE information that has been provided to you in a tender, and if necessary raise a clarification question to resolve any nagging doubts or concerns you may have about the accuracy of the details provided.
You should be provided with basic information on the number of employees likely to be transferring under TUPE. Remember that these people will all be in roles that contribute more than 50% of their time to the incumbents’ delivery of the service for which you are bidding.
Remember, TUPE is not something you can avoid, and if successful, you will need to absorb these people into your business. You should, therefore, factor this into your cost calculations and adjust your pricing model accordingly.
Finally, what if within the tender documents there is a question asking you to describe your approach to handling TUPE?
Based on our experience in writing bids with TUPE questions, we recommend including the following in your response:
- Show your understanding of TUPE by referring directly to the legislation, and any associated guidance such as that issued by ACAS, which you may wish to adhere to.
- If you have experience, then write about it! If your company has both lost and gained employees through TUPE transfers, then don’t be afraid to include details of your experiences from both sides of the fence, as this will allow you to highlight your company’s ethical, fair, and compliant approach to business.
- Within your proposed mobilisation plans, ensure that sufficient time has been allowed for both individual and group consultations. Best practice, depending on the circumstances, is to allow time of at least two weeks between the first and second meetings so that initial queries can be investigated, and time provided for the employees to consider how they may be affected.
- Detail how your efficient administrative systems enable you to both provide and absorb Employee Liability Information (ELI) data, as appropriate to the circumstances.
Try to make the response sound personal, for example where you might hold nightshift or weekend consultations to meet the needs of part-time and shift workers, you should share this in your response. The welfare of the affected employees should always be prioritised, so make them the focus of your writing, and don’t be afraid of TUPE: embrace it and use it to showcase the strengths of your business.
If you are struggling with a TUPE question in your ITT submission, or for further detail on the specialist writing services and training courses offered by Executive Compass, please contact us to discuss how we can help.