Measure for Measure . . . TUPE and redundancy

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.

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:

• don’t want to TUPE through and would be happy to be made redundant (whether or not a genuine redundancy situation exists)
• are not willing or able to change location/work base if that is what is needed
• are not willing or able to learn new working methods and techniques

and by way of comparison some people

• are keen to expand their skill base
• are keen to change location
• have unused skills in their current role that would be useful in a new structure
• will do just about anything to keep a particular job

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.