Note: this article was first written by our colleagues at Solve HR, before Solve HR joined Law At Work in March 2020. We have imported this...
The following article outlines a complex TUPE project Solve undertook on behalf of a client who was taking on a service. In this particular situation, we advised a business who specialises in earthworks and infrastructure services as well as coal extraction and distribution who had won a major contract to load and haul blasted rock from a quarry face to the processing plant. The out-going contractor was understandably aggrieved about losing the contract and determined not to be helpful during the transfer. Both sides accepted that TUPE applied to the change in contract. The out-going contractor sent over a list of 47 employees they said were assigned to the organised group, confirming they were dedicated to the contract and therefore should all transfer over under TUPE.
Drawing on our experience of advising businesses on TUPE transfers we conducted due diligence on behalf of the business, and on analysing the tender document they had produced to win the contract, sorting headcount into designated roles and responsibilities and speaking directly with employees, determined that 6 of the 47 employees cited by the out-going contractor were not wholly assigned to the contract and should therefore not transfer under TUPE. After debate with their in-house legal team the out-going contractor accepted and agreed to re-deploy the 6 employees. We were then left with 41 employees to consult with. As the new business were proposing to operate the contract in a radically different way and with new more advanced machinery, making a leaner more cost-effective service they were proposing to make 14 employees redundant and change work patterns from a shift based system of 4 on 4 off to working Monday - Friday. The project was broken down into two distinct parts.
Firstly, to manage the entire collective redundancy consultation process pre-transfer which involved 40 employees including those on long term sick. Secondly, to carry out the necessary TUPE consultation process with the 40 employees transferring to our client. All consultations were to be concluded within a six week timeframe. During this process, we managed the following activities: Provision of support for the Staff Representatives taking part in both the TUPE and redundancy consultations, confirming their role and responsibilities and how to support employees during the process.
Representatives had been elected but they didn't fully understand their role. This had led to confusion and rumour both of which ended following ongoing concentrated support. Group consultation on behalf of our transferee for the TUPE process along with the out-going contractor. Scheduling inviting and scripting individual TUPE consultation meetings on site with all 40 employees. Inviting, scripting and holding individual consultation meetings on site with all 40 employees on redundancy, offering outplacement support and ultimately achieving 14 voluntary redundancies and that combined with the 6 employees the out-going contractor retained, meant that there were no compulsory redundancies.
Collating questions and issues arising from group consultation with regards to TUPE and Redundancy, drafting responses and publishing information. Clear and firm handling of the issues raised both during and after consultation meetings ensuring employee's confidence in the process. Co-ordinated, drafted and issued redundancy notice letters to all those employees who took voluntary redundancy. Co-ordinated, drafted and issued letters confirming the TUPE transfer terms and measures accepted by all employees which also confirmed they were no longer at risk of redundancy.
Drafted and issued letters to all transferring employees that their new working hours would be initially on a two month trial period. Collated information for payroll and pension for the 28 employees who transferred. Maintained regular communication with the Directors allowing speedy resolution of any issues and a co-ordinated approach to bring the project to conclusion. Issued documentation to transferring employees so that employee records were up to date and the client complied with obtaining right to work documentation as appropriate. Held regular meetings with the Trade Union for those employees who were members. Although there was no collective agreement in force, the Trade Union were altered to the potential redundancy situation and we pro-actively engaged with them in an attempt to prevent hostility.
The outcome, was that the TUPE consultations took place within the six week window and transfers went ahead as planned with no issues or resignations. The Directors were complimentary of the advice and support provided during what they had found to be a stressful complex legal process. The redundancy consultation process was conducted successfully with no compulsory redundancies taking place. There were no formal appeals or Employment Tribunal claims as a result of redundancies and the majority of employees were able to secure new employment. All of which meant that our client from day one of the transfer, was able to concentrate on providing an excellent service to their new client. More information on TUPE - Transfer of Undertakings Protection