Transfer / Induction:
Experience of relevant service management among senior managers of the new organisation
TUPE transfer of staff
Pensions (admitted body status; comparable pension scheme)
Consultation / negotiation arrangements with trade unions and professional associations
Trade union / professional association recognition
Advice for staff (ie. personal / welfare support)
Communication with staff (ie information material, newsletters, notice boards etc)
Early understanding of the role for each member of staff
Options for future terms and conditions (where appropriate)
Induction arrangements (the culture of the new employer, business strategy, health and safety, equal opportunities)
Work base, location
Competencies of New Employer:
IiP or equivalent
Skills audit / training needs analysis of staff
Personal development programmes
Customer care philosophy (and training for staff group on this)
Probation / capability procedures
Behaviour:
Disciplinary procedures
Performance management (appraisal)
Performance measurement of the organisation
Quality assurance mechanisms
Counselling of staff
Arrangements for team meetings / briefing sessions
Code of ethics
Development:
Continuous Professional Development scheme
Training programme / investment in training
Suggestion scheme
Customer surveys
Management of change and consultation mechanisms
Stability:
Continuity of employment for staff
Clearly defined line management responsibility
Recruitment and retention measures
Communication to staff (for example team or staff group meetings)
Change (Reductions in Staffing):
Communication commitment
Formal consultation mechanisms
Framework for redundancy management - measures to avoid redundancy
- recruitment freeze - temporary / agency staff - reduced hours
- flexible working - restructure
Ring fence arrangements
Voluntary redundancy / early retirement
Clear / objective selection policy for compulsory redundancy - redeployment
- retraining - relocation
- remuneration protection - severance policies
Counselling for staff
Equality:
Compliance with the Equality Act 2010 (for all employers) and Equality Duty (if transferee is a public body)
Equal Opportunities policy (for staffing and service delivery)
Consultation on the Equal Opportunities policy
May 2014
Who is responsible for Equal Opportunities (ie. which senior manager?)
Training
Complaints procedure / grievance policy
Equality Impact Assessment
Action plan to ensure policy is implemented
Monitoring (eg. recruitment)
Communication Health and Safety:
Health and Safety policy
Consultation on the policy
Accountabilities of staff (especially senior managers)
Training
Arrangements for risk assessment
Adequate resources to address concerns
Monitoring
Communication
APPENDIX 3 The Legal Position on Continuous Service
Movement and Continuity of Service
Unfair Dismissal Redundancy and
Redundancy Pay
Occupational Sick Pay Occupational Maternity Pay
TUPE to academy then move to Community/Voluntary Controlled School within the same local authority
Change of employer – 12 months continuous service for
Change of employer – 12 months continuous service for
Will not qualify for the full entitlement unless:-- The employee has four
years aggregated service in Community or VC School; or - the Local Authority
recognises service in academies for this purpose (see Circular)
Entitlement needs to be
acquired anew unless the Local Authority chooses to recognise service in academies (see Circular)
TUPE to academy and then moves to a Voluntary Aided or Foundation School within the same local authority
As above As above The VA or Foundation school is
the employer, so has the discretion to decide whether to recognise service with the academy or with previous schools (see Circular)
The VA or Foundation school is the employer so has the discretion to decide whether to recognise service with the academy or with previous schools (see Circular) Community to VA/Foundation
School or VA/Foundation to Community school in the same authority (or a different authority)
If the move is within the same local authority this would be treated as the same employer (Section 218(7) of the
Employment Rights Act 1996).
If the move is to a school in a different local authority then there is a change of employer and the employee needs 12 months continuous service to claim unfair dismissal. (2 years continuous employment from April 2012).
As above In all cases the move is from
one employer to another and the new employer has the discretion outlined above. Only movement from a Community/VC school to a Community/VC school within the same local authority or different local authorities automatically builds up
entitlement to full sick leave/pay entitlement under the Burgundy Book. (See Circular)
In all cases the move is from one employer to another and the new employer has the discretion outlined above. Only movement from a Community/VC School to a Community/VC School within the same local authority or a different local authority builds up entitlement to full maternity leave/pay entitlement under the Burgundy Book. (See Circular)
May 2014
TUPE Amendment Regulations 2014 APPENDIX 4
The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE Regulations 2006) were amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 (the amending Regulations 2014) with effect from 31 January 2014 with a further change being effective from 1stMay 2014..
The Government introduced the changes to the TUPE regime, effected by the amending Regulations 2014, to "remove unnecessary gold-plating ... and remove unfair legal risks to companies carrying out transfers"
A summary of the changes and how these relate to schools can be found below
Summary of Changes with effect from 31stJanuary 2014 as a result of the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014)
What Has Changed Effective
Date
Schools Related Example Further Advice for Schools
Effect of the Transfer on Contracts of Employment / Dismissal of Employees because of the transfer A variation to a contract of employment will be void, or a dismissal unfair, if the sole or principal reason for the variation or dismissal is the transfer (in relation to transfers that take place on or after 31 January 2014) The wording of the regulation 4, which deals with the effect of a transfer on contracts of employment, and reg.7, which deals with the dismissal of employees because of a transfer, more closely reflects the language of the
Acquired Rights Directive (2001/23/EC).
31/1/14 A school ends their facilities management contract and is to undertake the task in house. The employees of the previous provider transfer to the employment of the school. The school dismisses the
grounds maintenance officer as the site agent is to undertake the duties of the role.
The dismissal may be deemed to be unfair as the principal reason for the dismissal is the transfer.
Advice should be sought from HR provider and legal insurers prior to varying contracts of employment or the dismissal of employees following a transfer.
Community/VC Schools and Nursery’s should also contact the HR Statutory Schools Team at the earliest opportunity should a dismissal be identified.
Change in the location of the workforce following a transfer
A change in the location of the workforce following a transfer can be within the scope of "an economic, technical or organisational (ETO) reason entailing changes in the workforce".
31/1/14 A school in a hard federation ends their catering contract with an external supplier, and brings the provision in-house. The Governing Body of the Federation determine that school meals for all pupils in the Federation are to prepared in a kitchen 10 miles from the original location.
Advice should be sought from HR provider and legal insurers prior to varying contracts of employment or the dismissal of employees relating to a location change following a transfer.
This may prevent a genuine place of work redundancy from being automatically unfair (under reg.7) and allowing a change of location by reason of a transfer to constitute a valid contractual variation (under reg.4)
This change may meet an ETO reason entailing changes to the workforce for a place of work redundancy or contractual variation.
All maintained Schools should also contact the HR Statutory Schools Team at the earliest opportunity should a place of work redundancy or contractual variation be identified.
Provision of employee liability information (due diligence)
The transferor is required to provide employee liability information to the transferee 28 days before the transfer, rather than the previous 14 days before the transfer.
Transfers on or after 1/5/14
A community school converts to an academy trust on the 1stSeptember 2014.
Employee liability information is required to be provided to the Academy Trust by 4thAugust 2014.
Additional time planning will be required to meet the statutory timescale. Failure to provide employee liability information may lead to a complaint to tribunal and a compensation award subject to a
minimum of £500 per employee in respect of whom the transferor has failed to provide the information
For transfers out of the school or an Academy conversion early liaison with the Schools HR and Payroll provider is advised in order to ensure adequate time is allocated to produce and provide employer liability information.
Community/VC Schools and Nursery’s should also contact the HR Statutory Schools Team at the earliest opportunity to ensure CBC is involved in the
provision of employee liability to the transferee.
Rights & obligations relating to Collective Agreements made after transfer
Rights and obligations relating to a provision of a
collective agreement do not transfer, where the provision is agreed after the transfer, and the transferee does not participate in the collective bargaining process.
31/1/14 A school coverts to an Academy on the 1st July 2014 and a teachers’ pay award is collectively agreed nationally to be effective from 1stSeptember 2014 the pay award is not, by law automatically
applicable to the transferred employees on teachers’ conditions of service
In these circumstances The School Teachers’ Pay and Conditions Document ceases to be a statutory entitlement for teachers but becomes a contractual obligation subject to consultation and dialogue between employee and
If the school is a transferee, advice should be sought from their HR provider and legal insurer as part of the transfer process. Trade Unions may request the transferee to confirm that collective agreements will be adopted by the transferee.
May 2014
employer.
Renegotiation of terms derived from collective agreements
Renegotiation of terms derived from collective agreements, where the variation is because of the transfer, is allowed one year after the transfer, provided that the change does not result in the rights and
obligations of the employee being no less favourable overall to the employee as compared to those immediately before the change.
31/1/14 A School ends their catering contract with an external provider and brings the provision in-house. The employees of the external provider transfer to the
establishment of the school on their existing terms and conditions of service.
The school wishes to renegotiate the employees terms in order for them to be engaged on NJC terms and conditions of service in line with other support staff.
This is possible under the revised
regulations provided that the change does not result in the rights and obligations of the employee being no less favourable overall to the employee as compared to those immediately before the change.
If the school is a transferee, advice should be sought from their HR provider and Legal Insurers prior to any
renegotiation of terms derived from collective agreements, where the variation is because of the transfer
Definition of Terms
Transferor – Employer who is to transfer staff to a new organisation / employer as part of the TUPE provision Transferee - Employer who is to receive the transferring staff as part of the TUPE provision