Know your rights: When a new employer is taking over

Increasing numbers of hospital doctors have contacted HCSA over restructuring plans that will see their team or department transferred to another Trust.

Here, National Officer and legal expert Richard Wilde explains the legal ins and outs of the TUPE – Transfer of Undertakings (Protection of Employment) – regulations that govern such cases.

So, what is TUPE?
TUPE is a common legal procedure often found between NHS Trusts.

In basic terms, the TUPE statutes apply to organisations of all sizes and protect employees’ rights when the organisation or service they work for transfers to a new employer. This sounds beautifully simple.

However, when placed against a backdrop of HR, differing NHS Trusts and outsourcing, a TUPE can quickly become a complex legal minefield where rights and conditions need vociferous protection.

TUPE has impacts for the employer who is making the transfer of staff and the employer who is taking on the transfer.

How does it affect me?
There are two situations when the TUPE regulations may apply: business transfers and service provision transfers. Both of these circumstances can affect NHS staff of all disciplines and grades.

Business transfers
The TUPE regulations apply if an NHS Trust wishes to move a service provision to another Trust. Recent changes between Exeter and Plymouth NHS Trusts are an example of this. HCSA members there had a brand new employer.

HR from both Trusts must work in collaboration and according to strict timeframes. It is here where there can be a problem. Bureaucracy, lack of communication and sometimes a lack of knowledge can cause delay.

Your HCSA national officer will take ownership of this situation, particularly if an entire department of several clinicians is moving.

Service provision transfers
If a Trust privatises or quasi-privatises a service provision, your employment rights can be affected.

The TUPE regulations apply in the following situations:

  • a contractor takes over activities from an NHS Trust (known as outsourcing).
  • a new contractor takes over activities from another contractor (known as 
  • re-tendering).
  • a client takes over activities from a contractor (known as insourcing).

Requirements under TUPE
When TUPE applies, the employees of the NHS Trust 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.

An individual’s refusal to move over with a TUPE transfer can be deemed a resignation.

In negotiations, it is best to highlight objections or disputes rather than an outright refusal to transfer. It is imperative at this stage to have your HCSA officer with you.

Following a transfer, employers often find they have employees with different terms and conditions working alongside each other and wish to change/harmonise terms and conditions.

However, TUPE protects against change/harmonisation for an indefinite period if the sole or principal reason for the change is the transfer. Any such changes will be void.

Employers must inform/consult with employees through “appropriate” elected representatives who could be trade union representatives and trade union officials.

Keep everything in writing – not verbal
The matters of transfer of undertaking and its contractual obligations are extremely serious. However harmonious your relationship with HR, record TUPE matters regularly and in writing.

The employer must disclose in writing:

  • the fact that the transfer is going to take place, approximately when and why. Time frames can be estimated if necessary. 
  • any social, legal or economic implications for the affected employees for example a change in location or risk of redundancies. On-call accommodation as part of the transfer is often a negotiating point if your new place of work is far from home. 
  • any measures that the outgoing and incoming employers expect to take in respect of their own employees (even if this is nothing).
  • the number of agency workers employed, the departments they are working in and the type of work they are doing if agency workers are used.
  • the outgoing employer must provide information about any measures which the incoming employer is considering taking in respect of affected employees.

And remember, if in doubt, always contact your HCSA national officer.