Organisations rarely have dedicated TUPE Managers – and they may only have a TUPE once every few years – so it’s a process in which few people have expertise and therefore confidence.
This has inspired us to create a series of useful tips for people in this situation. These tips can be applied to any TUPE process, however different or complex.
About three months ago, I received a slightly anxious message from a former colleague of mine who had suddenly been asked to oversee a TUPE project. This is often what happens: somebody in HR (with an already busy workload) is informed by a business area that they have agreed to a transfer and that TUPE might apply. The HR person then needs to find the time to prioritise the TUPE, obtain legal advice, and make a plan – all quite quickly. It can be a really daunting prospect because you are taking on something that you know will be challenging and carry a lot of risk, but you also need to work out how to fit it around or deprioritise existing pieces of work.
The first set of tips we’ve created are for people in exactly this situation and focus on the first three things you should do when starting a TUPE project.
Tip One: Understand the business change
The first thing to do is to find out from the business area exactly what is behind this transfer.
Maybe they are taking on a function that has, up until now, been done by another company. Maybe they are outsourcing work that they have always done themselves to an external provider. Whatever the case, probe them on the details:
Will the work still be done in exactly the same way once it has transferred in or out?
Do they know how many people currently perform the work that is being transferred?
If there are going to be any changes, what do they expect the changes to be and why is it changing?
What is the reason for them to do this transfer in the first place?
Has a date been discussed for the transfer to take place? If yes, what are the circumstances that have led to that date being set?
What goals do they aspire to in undertaking this transfer?
Finding out these details (and then sharing them with your legal advisor) will help establish whether a TUPE is actually taking place. It will help you understand the scale of the project, and potentially even time-frames, from which you can start to consider a project plan and risk register.
It also enables you to give astute advice to the business area, adding value from the outset. For example, if people are transferring into the business area, then they can start to think about how these people will fit within the current organisational structure. They can also consider the importance of communicating the transfer to existing staff in a timely manner to keep them engaged and on-board.
Tip Two: Get as much data as you can
Any TUPE will involve gathering and assessing employee liability information (ELI), which is the data on the employees who are transferring. This includes which people are in scope, what terms and conditions they are on, any contractual benefits they are entitled to retain, and more.
Whether transferring employees in to or out of your organisation, getting this established early will help you understand the parameters of the TUPE.
In addition to the ELI, getting hold of any other data you can lay your hands on is always beneficial. For instance, if there is an existing contract between the organisations involved, it may contain clauses about TUPE. Contracts sometimes contain this as a result of the frequent uncertainty about whether or not TUPE applies, so obtaining and reviewing the contract is a must.
You could also consider the timesheets of the affected employees, to review what percentage of time they are working on the service that is transferring. This may be pivotal to an assessment of whether or not TUPE applies.
Obtaining data for analysis will enable you to assess and manage the full impact to the business, both at the outset of the project and on an on-going basis.
Tip Three: Identify your key stakeholders
You will have a broad set of stakeholders for a TUPE – some obvious (the other organisation’s HR team, your legal advisor) and some less obvious (the finance business partner for the work area, an actuarial advisor, your HR pay and reward team). There may also be a formal governance structure, such as a project board, into which you will need to report.
The people who want to hear about the TUPE will be easy to identify and engage with. Do consider who else needs to know about it: your HR Director and/or senior team may need periodic updates for example, even if they seem content to let you manage it without their oversight.
Some of your stakeholders will be external, such as any external legal counsel you appoint. You will need to be careful what information you share with them and how you share it, so always consider GDPR.
One of the most important stakeholders will be an HR contact from the other organisation(s) involved in the TUPE. Establish contact with them as soon as possible. Work closely with them, striking a good balance of being open about progress, but only sharing the right information at the right time. Give them early notice of when you plan to carry out key stages of the TUPE, such as employee consultation, to help your project run as smoothly as possible.
Why we recommend these three tips first
There will be many other tasks that you may think are more important, but we’ve picked these three because we believe that doing them well will set your TUPE work up for success.
Completing these tasks will bring peace of mind for all involved that you are making a strong start, are fully abreast of the situation, and keeping people informed.
What’s next in the TUPE Series
We think that the next critical step is an assessment of the risks of your TUPE project.
There are more risks with TUPEs than you might think. Nobody likes surprises, so time spent thinking about the sources and potential magnitude of risk early on is time well spent. For example:
Do you know what the potential costs associated with your TUPE could be?
Do you understand the potential legal ramifications of getting your TUPE wrong?
Have you thought about how your TUPE could impact your organisation’s reputation?
Considering and assessing risks at the outset will enable you to mitigate them as much as possible during the course of the project.
Join our Virtual Meet-Up
In the last blog we also mentioned a virtual meet-up to discuss TUPEs – well, that’s going ahead this Friday (29th May) so do get in touch if you are interested in joining us!
We’d also be really interested to hear if you have any feedback. Do the above three tips represent things that you did early on in your last TUPE? Do you think #TUPETopTips like this are useful? We have loads of ideas for future #TUPETopTips, but if there are any areas of TUPE you’re desperate for tips on then let us know!
Clare Blain, Director at Velocitii Digital As Velocitii’s Director of People, Clare focusses on putting people at the heart of the business and everything we do.