The question of when staff being transferred to a new employer are covered
by Tupe, and exactly what rights are within the remit of the regulations has
been dragging on for years. And HR professionals should not expect easy answers
when the Government puts out the latest consultation paper on this thorny issue
this summer. But while this document might create a lot of debate around Tupe
when it appears, it is at least worth preparing for some of the likely
recommendations that will come out of it.
First, it seems pretty clear that the DTI will put forward some basic
options when Tupe applies to staff transfers. One will be that it always
applies, another that it almost always applies, subject to objective factors
(read existing case law).
This is a huge step, as the Tupe position on different transfers has been
refracted through a number of past cases, making a clear interpretation of what
happens difficult. The move to make Tupe apply at least to most cases will make
the position much clearer.
Second, as the Government has stated in the past, pension rights will now be
covered by Tupe. But again there will be a range of options. Employers could be
required to provide broadly comparable benefits, or at least offer benefits
over a minimum threshold. They could also be given the option of providing a
cash payment in lieu of pension benefits. All in all, the potential nightmare
that is the transfer of benefit rights looks like being addressed in a very
flexible way.
Next there is the issue of "fast-track" guidance from tribunals on
when Tupe applies. This seems inherently sensible, though employers’
organisations might seek to push for this guidance to be binding.
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The story is far from over. Employers’ organisations are likely to link a
successful resolution of the proposals to proper, consistent implementation of
the staff transfers guidance in the public sector. And the actual proposals
will be fought out for months to come.
But there is a developing consensus that the complexities and inconsistencies
need to be driven out of Tupe. Hopefully this consultation document will take
that process forward.
