When undergoing a TUPE or ‘Transfer of Undertakings (Protection of Employment) Regulations 1981’, it is important to identify which group of employees will be undergoing the transfer.
As so many businesses use outsourcing, flexible working and other frameworks, it can become confusing as to who actually qualifies for a transfer or not. Issues can also be raised if employees are on leave for various reasons during the time of transfer and it is not always easy to ascertain whether an employee falls 100% within the part of the business that is moving.
So who exactly is transferred under TUPE?
Only employees on permanent or fixed term contracts are liable for transfer. Agency workers are not.
Sounds simple, right? If only…
If you happen to have employees who are temporarily assigned to work in a different office or department within the business or for another organisation, this can complicate the situation. That is because it depends on whether they were reassigned in or out of the business during the time of the transfer and on the length of the reassignment.
Hint: It is important to remember that employee liability information should be provided by the transferor to the transferee before the transfer takes place.
So what is the best method for finding out which permanent or fixed term employees qualify for transfer?
The percentage test has long been a rule of thumb in TUPE. This essentially means that you look at the percentage of working time an employee spends in the transferring business or service. If it is 50% or over then they transfer.
However this test has proved controversial and there are plenty of tribunals that back this up. That is because life isn’t always as simple as percentages. An employee may well spend over 50% of his or her time on a particular account or service that is being transferred, but on paper, they might be assigned to a specific department that is not transferring. It is important then to consider the job description of an employee in their employment contract.
You can read an example of this happening within a business here.
So what about Employees who are away at the time of transfer?
Employees on maternity leave, short-term absences or holiday will most likely be transferred. However, things get more complicated, of course, with those on sick leave and particularly those on permanent health insurance. In this instance, an assessment needs to take place as to whether these employees will return to work.
If your head is swimming at this point, don’t worry. Reality HR provides a TUPE service so that we can support you every step of the way.
To find out more, have a chat with me or we can meet up for a coffee! Just call 01256 328 428 or fill out the form below to organise a callback.
The post Tips for TUPE: Who transfers? appeared first on Reality HR Limited.
from Reality HR Limited http://www.realityhr.co.uk/blog/tips-tupe-transfers/
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