Complicated TUPE Situation
Discussion
Purposefully keeping things a bit vague and I'm not even sure I am asking the right questions! Possibly this should be in the Law section.
I work on a contract that has been re-tendered by a large national organisation, due to start with the new financial year (i.e. 6 weeks time). The contract is split into regions, and in region A we currently do 2/3 of the work. Under the re-tender we have been awarded the minority position in region A (so c. 1/3 of the work) but also a new position in another adjacent region B (also c. 1/3 there) therefore overall putting us back on par in terms of turnover.
In region A the "winning" bidder have indicated they want to TUPE some staff to them (as they are new to the area and have no one in place). Region B have indicated no TUPE to apply (i.e. we are not being asked to take anyone from region B). I cannot see any advice from a quick google on what happens in this kind of asymmetrical situation.
We do not want anyone to move as the whole original team can run both elements we have won.
The company I work for are currently seeking proper (legal) advice but in the short term I am personally looking for quick feedback from anyone in the know.
Any idea what can be forced on us or how this is likely to pan out?
Apologies for the vagueness and happy to clarify details if that does not makes sense.
Thanks in advance,
Jimbo
I work on a contract that has been re-tendered by a large national organisation, due to start with the new financial year (i.e. 6 weeks time). The contract is split into regions, and in region A we currently do 2/3 of the work. Under the re-tender we have been awarded the minority position in region A (so c. 1/3 of the work) but also a new position in another adjacent region B (also c. 1/3 there) therefore overall putting us back on par in terms of turnover.
In region A the "winning" bidder have indicated they want to TUPE some staff to them (as they are new to the area and have no one in place). Region B have indicated no TUPE to apply (i.e. we are not being asked to take anyone from region B). I cannot see any advice from a quick google on what happens in this kind of asymmetrical situation.
We do not want anyone to move as the whole original team can run both elements we have won.
The company I work for are currently seeking proper (legal) advice but in the short term I am personally looking for quick feedback from anyone in the know.
Any idea what can be forced on us or how this is likely to pan out?
Apologies for the vagueness and happy to clarify details if that does not makes sense.
Thanks in advance,
Jimbo
So its public sector, with private sector commissioned. ?
Area B might have enough staff to do the job already, but you are rightpropoer legal advice is needed.
Look up TUPE rules to see what assimilation right employees have when there is an over supply of staff.
I don't want to amke any wild assumptions and get it wrong
Area B might have enough staff to do the job already, but you are rightpropoer legal advice is needed.
Look up TUPE rules to see what assimilation right employees have when there is an over supply of staff.
I don't want to amke any wild assumptions and get it wrong
anothernameitist said:
So its public sector, with private sector commissioned. ?
- Correct (strictly speaking "public sector body") Not coming up with much on a search for oversupply in a TUPE situation.
To clarify we want to keep our team as is and if anything are looking at having people "poached" and being short ourselves.
My understanding is that TUPE is to protect staff, so in a situation where existing jobs are safe can a company taking over part of a contract (but not all) force us to hand over staff? The additional complication being the awarding public sector body has also given us identical work in another area (but they are run separately). There are no geographical issues in play (i.e. no office moves etc.).
Fully appreciate advice is needed and this is being sought by our Director/HR. I am in an odd situation where I manage the team so am both trying to protect my people but am possibly also subject to the TUPE myself and trying to get an idea of what to expect!
Head of HR with TUPE background here so will throw in my tuppence, but you really need an employment lawyer with TUPE specialism as it's notoriously, fiendishly complicated and the initial question of whether it applies or not is always a tough one.
Your instincts are right though. If fundamentally the provision for work is continuing and there are no changes to the workforce which would constitute a material detriment - i.e. They can work in the same office and cover the new region with the same terms and conditions, then my view is TUPE would be unlikely to apply as you would argue it is a reorganisation or reconstitution of the work, rather than a true transfer of undertakings. You can't be compelled by the contract winner to transfer staff. Contextual factors are important though such as the duration of contract and whether any of the specific individuals are so critical to the delivery of the contract they need to remain with region A.
Would be interesting to see what staffing assumptions were baked into their bid though, if it stated that they would need to inherit the incumbent workforce to be successful the awarding body would (should) have taken that into account. Otherwise they are flirting with breaching tendering regs too.
Good luck.
Your instincts are right though. If fundamentally the provision for work is continuing and there are no changes to the workforce which would constitute a material detriment - i.e. They can work in the same office and cover the new region with the same terms and conditions, then my view is TUPE would be unlikely to apply as you would argue it is a reorganisation or reconstitution of the work, rather than a true transfer of undertakings. You can't be compelled by the contract winner to transfer staff. Contextual factors are important though such as the duration of contract and whether any of the specific individuals are so critical to the delivery of the contract they need to remain with region A.
Would be interesting to see what staffing assumptions were baked into their bid though, if it stated that they would need to inherit the incumbent workforce to be successful the awarding body would (should) have taken that into account. Otherwise they are flirting with breaching tendering regs too.
Good luck.
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