We must not make a scarecrow of the law,
Setting it up to fear the birds of prey,
And let it keep one shape, till custom make it
Their perch and not their terror.
(Wm Shakespeare, Measure for Measure, Act II, Sc I)
The TUPE regulations are too dynamic for the comfort of those advising their employer (or their clients), with caselaw often changing between taking on a service contract and losing it again. This is very anxiety-provoking for most HR practitioners, since ‘getting it wrong’ can mean their employer is taking on liabilities they otherwise need not, or, worse still, on the losing end of several employment tribunal claims.
This is particularly so when a TUPE transfer involves potential headcount changes and redundancies.
The legislation on redundancy and TUPE intertwine and interleave, and it can be tricky working out who needs to be consulted about what, in what format, over what period of time, and by whom. So let’s have a go.
|Consultation||TUPE consultation||Redundancy consultation|
|Statutory obligation to inform or consult with appropriate representatives||Always, no threshold of employee numbers||20 plus redundancies at one establishment within 90 days|
|Appropriate representatives||Reps from recognised trade union; or employee reps appointed or elected by affected employees for another purpose; or specially elected/appointed employee reps||Reps from recognised trade union; or employee reps appointed or elected by affected employees for another purpose; or specially elected/appointed employee reps|
|Statutory Timescales||No defined statutory minimum period of consultation Information about transfer given to reps long enough before the transfer to enable consultation (with a view to seeking agreement) to take place on the ‘measures’ to be taken by either employer||Less than 20 redundancies – no specified timescale20+ redundancies at least 30 days before first dismissal takes effect100 +plus redundancies; 90 days Consultation ‘in good time’|
|Description of employees covered by the consultation||Anyone who may be affected by the transfer (not just those transferring)||Anyone at risk, and those who may be affected by measures taken in connection with those dismissals|
|Duty to inform||Inform, in writing: fact of transfer, date, reasons, implications for affected employees, measures envisaged in relation to affected employees||Inform, in writing: reasons; numbers and descriptions of employees proposed to be redundant, and total number of employees of each description at the establishment; proposed method of selection, and proposed method and timing of dismissals; proposed redundancy payments; number of agency workers working for employer, where in the business, and doing what|
|Duty to consult||With a view to seeking agreement to intended measures, considering representations, and stating reasons if proposals rejected||With a view to reaching agreement, about ways of avoiding the dismissals, reducing the numbers, and mitigating the consequences|
|On whom duty is placed||Transferor to consult; transferee to provide ‘measures’ statement||Employer|
|Penalties||Up to 13 weeks’ pay (statutory maximum not applying)||Protective award up to 90 days’ pay|
The Government made a call for evidence on ways to improve TUPE, which closed on 31 January 2012. No draft legislation has been published.
TUPE caselaw is developing all the time. Where redundancies are to take place in a TUPE scenario, then both sets of regulations and caselaw have to be considered and applied.
The redundancy consultation process and timing requirements are currently the subject of consultation which ends on 19 September (http://www.bis.gov.uk/assets/biscore/employment-matters/docs/c/12-808-collective-redundancies-consultation.pdf). It is proposed to shorten the consultation period for 100+ redundancy exercises.
Many of the toughest issues around TUPE, economic technical or organisational dismissals (ETOs) and collective redundancies (or finding alternatives to them) are most effectively resolved by having a good consultation process.
Having clear organisational and commercial objectives does not mean that the way of achieving these is set in stone, and there is a real difference between the aftermath of a well constructed and well consulted process, and the fall-out from a rushed compliance exercise.
As long as the law applies to what employers can do to employees at work, there is always going to be an area of ‘grey’. It is simply not possible to arrive at a system that is both predictable and clear and also flexible and fair (http://irenicon.wordpress.com/2011/06/10/red-tape-and-fairness/) .
If we accept this as a fact and work within it, then it becomes obvious that the way to deal with the ‘grey’ areas is to have a conversation – in other words, to consult. If you do this in a TUPE context you will quickly discover that some people:
and by way of comparison some people
I have often sat down with HR teams and Directors who have said “X will never do this, Y will never agree to that”. Sometimes they are right, but equally they can be wrong. Flexibility can be as much influenced by circumstances as by personality. We don’t know what people are keen to do until we ask them, and lay out the options for them. Good consultation can have useful individual results, as well as improving the atmosphere at a challenging time.
For regular free teleseminars on TUPE, redundancy and more check our events page. We are running a new seminar on how to handle the two processes simultaneously.
We founded Irenicon in 1980 to help employers make employment law work for them. We were always a mixed disciplinary practice – something quite revolutionary at the time. Over the years we have worked with some wonderful organisations, pushing the boundaries of how employment law can really be made to work without restricting the flow of the organisation.