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.
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.