Welcome to this week’s Discuss HR, the HR blog written for and by members of Human Resources UK.
Can I just take this opportunity to thank everyone who attended our recent networking events, the feedback has been very positive and I will be releasing details soon about the next round of events...
Today we welcome back our very own stand up comedian and writer Annabel Kaye, who also manages to squeeze in time to be a employment law specialist! Today she discusses the legal and cultural impact of TUPE and why at times it can be rather complicated! (Ed Scrivener)
TUPE or not TUPE?
That is the question
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| The truth that Yorick wasn't to beTUPE'd hit home |
HR management is not only entwined with the commercial needs of an organisation, it is also surrounded by law and regulation. TUPE [the Transfer of Undertakings (Protection of Employment) Regulations 2006] are a brilliant illustration of where these areas collide and things can get complicated really fast.
The TUPE regulations cover a range of scenarios – from mergers to ‘service provision changes’ – which occur when the work being done by an ‘organised grouping’ of employees (which can be just one person) is moved to another organisation.
A fortune has been spent on legal fees arguing about when moving a piece of work from one provider to another is a “service provision change”, and so is, or is not, covered by TUPE. You can see in the case reports the desperation of legal advisors and HR teams who simply failed to realise early enough that the Regulations applied to their circumstances. Whilst there have been some useful cases about what happens when the work is entirely dispersed across a wide range of organisations (no TUPE), the majority of contracting-out exercises (and contracting-back-in, and change-of-service-provider exercises) are covered by the TUPE regulations and are likely to remain so for a while.
TUPE is a bit of a melting pot for HR and employment lawyers, since it is also part of the commercial contracting and purchasing (or sales) side of the organisation, and the thinking of those functions does not always incorporate what HR need to do to make the process work.
In simplistic terms, an organisation considers outsourcing when the function/individuals:
- are too expensive to retain in house for the benefit they deliver;
- are isolated experts on specialist subjects for whom the organisation can offer no ongoing professional development or support;
- are not delivering the right performance against budget;
- where an external body has made a policy decision this should be so
Whatever the reason for deciding, the end effect of TUPE is as profound in psychological terms as it is legally.
Think about it this way. Imagine you woke up this morning with a complete stranger beside you, only to find out that the law regarded you as having been married to each other for years. Not only that, everything the other person did with regard to your household legal affairs is something that is binding on you. So if your new (but in law, longstanding) partner ran up a major credit card bill before you met them, you are required to pay the bill. That is how it is for an employer who has just TUPEd in a team.
And how about being the person transferred. Suddenly you are ‘in bed’ with a complete stranger (or worse someone you know well and positively decided never to date, never mind marry). You are being passed around in a crazy wife-swopping party and you didn’t ask to go to the party.
No wonder people go into denial and say – this can’t be happening to me. But TUPE is real, and it does have this effect. You can see why people spend a fortune litigating and saying “this can’t be applicable to me”.
This is the beginning of a series of articles on how TUPE really works and what the issues really are.
Starting with working out what you want out of a TUPE exercise and moving on to who is covered by it and what happens next, I am inviting readers to contact me with their own questions and concern (through the comments section or by email) so that we can move forward through the wonderful Alice in Wonderland World of TUPE together.
About the author
Annabel Kaye has been specialising in employment law since the seventies. She founded Irenicon in 1980 and has spent the last thirty years helping HR, line managers and everyone else look at employment law in a way that gets some organisational gain. She likes to think about things from a different angle and making the complex simple – despite the government’s best efforts. She has traded through three recessions and advised clients from multi-national corporations to the smallest organisation. The toughest thing has always been to balance the competing needs of staff and organisation and that never goes away whatever the legal details.
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Discuss HR is the blog for Human Resources UK, the leading LinkedIn group for those involved with HR in the UK. Next week’s Discuss HR will be published on Thursday 9th February and will the debut of Susan Popoola.
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