Dealing successfully with a TUPE transfer isn’t just about correctly identifying who transfers over and following your legal obligations with regards to consultation and information. There are some significant additional management challenges to come in terms of making the transferee’s business or organisation work well in its new form after the transfer.
Terms and conditions
Transferring employees keep the terms and conditions they are under when moving to a new employer, so there is an immediate practical management issue of looking after two groups of employees on different sets of terms and conditions. Some of this might involve administrative headaches, such as different holiday years, or the fact that a ‘full time’ week under one set of terms and conditions is 35 hours, but under the other set it’s 37.5 hours. There might be different rules around breaks to navigate, or working from home arrangements in place that need to be honoured and supported.
In terms of handling the practical challenges of two different sets of terms and conditions, keeping a list of what the main terms are, and which employee is on which would be sensible, so that the right day-to-day rules and working practices are applied to the right staff.
Different terms and conditions presents the additional challenge of resentment among staff. If one set gets better maternity pay, more holiday, additional sick pay or other extra perks that can cause problems. Communication is key here, and ensuring that employees understand that they are on different contracts, and why that is. Obviously ideally everyone would be on the same terms, however you are not permitted to change terms and conditions because of a TUPE transfer.
Having said that, we have had clients who, once the dusted has settled, have offered new terms to employees who have transferred in. This was done on a purely optional basis, and with careful communication and an incentive.
If you have an influx of new employees as a result of a transfer, it is frequently the case that your workforce as a whole is no longer structured in a way which suits the needs of the business in its new form. You may now have duplication of responsibilities, too many people performing the same roles, or the same work having been structured in a very different way at the transferor meaning there is a poor fit with how things are done in your business.
It is perfectly acceptable to conduct a restructuring exercise to ensure the needs of the business are being met, however you cannot dismiss someone because of the transfer. If you do need to make staffing changes such as redundancies following a transfer, it is essential that you include both new and existing staff in the process equally.
This may seem unfair to existing staff, given the only reason their jobs may be at risk is because the transfer took place, but you cannot exclude them for that reason. If you have too many administrators because you’ve inherited lots through a transfer, you need to include all administrators in the process and operate a fair selection process in which the transfer is not relevant.
Ultimately a successful workforce needs to work well together, so integration of transferring employees into the transferee’s business is vital for the transfer to be considered a success.
Transferring employees will probably be feeling vulnerable and will have been through a disruptive and uncertain time, and existing employees may also be feeling uneasy about how things will work and how they will be affected. Both sets of staff will be used to different cultures and may have been managed in a very different way.
Although transferring employees maintain continuous employment, they are ‘new’ to your business, so a supportive induction programme would be sensible, ensuring they know how things work, meet key people and start to build relationships, understand their role in the organisation and know where to go for the various queries they will have.
Ideally you want all employees, existing and new, to act and feel like one team. This takes time but you can certainly do things to move this along. Hold regular team meetings and social events, consider nominating existing employees to act as mentors or support colleagues, and try to ensure both sets of employees are mixed and involved in working together as much as possible. You need to avoid fostering a ‘them and us’ culture, and as part of that should ensure you are scrupulously fair at all times and address any concerns as promptly as possible.
If you need further advice on how to maximise the chances of a successful transfer, do get in touch.