Toupee or Tupe

​Well one is a wig, and one is to do with contracts of service being allocated to a new business / service but in my experience a lot of the time the name is where the confusion starts…  
 
TUPE is the Transfer of Undertakings (Protection of Employment).

That's great but again... eh? 

The most straightforward way I explain this that if a service or business is ‘lifted and shifted’ to another business / provider then the same happens with the employees that are assigned to that service / business.  As ‘TUPE’ incorporates both businesses transferring or a service moving that means that there are two types of scenarios that are protected by TUPE.
 
The reason for them being ‘protected’ is to ensure that no employee who is involved in a TUPE is at detriment because of this. 
 
You are possibly asking... well why would they be at detriment? 
 
TUPE is an interesting thing for employees, and we cover this a bit further down but it’s a business decision that impacts employees.  The business has decided, for whatever reason, to transfer that part of the business or service to another employer.  The impact of this is that the employees will then work for someone else who probably have different terms and conditions, pay rates, hours etc. the aim of the legislation is to protect those individuals who haven’t been involved in this decision. 
 
So lets look at this in terms of an example…  and I apologise in advance for my drawing skills...

​We have a cleaning company who has an employee working for them providing a service to a business, lets say its called ‘Thomas’s trade supplies’.  Thomas’s trade supplies has a contract with Carol’s cleaning company to come in each day and clean the offices.  Carol has employed Carl to be the cleaner on site. 

Thomas’s trade supplies has reviewed the contract with Carol’s cleaning and decided that Shaun’s Sparkles,  

cleaning company will be their new provider to clean the offices’.  This means that Carol’s cleaning loses the contract and Shaun’s sparkles now take this over. ​

​But what happens to Carl?
 
Carl as he is only provided to work at Thomas’s trade supplies location, albeit he is paid by Carol’s cleaning, he would be considered to be aligned to that specific contract and therefore be ‘in scope’ of TUPE.  This means that he would leave Carol’s cleaning company and transfer all of his employment to Shaun’s sparkles (he is ‘lifted and shifted’ with the contract).  

Carl shouldn’t suffer a detriment because Thomas’s trade supplies has awarded another business the contract of cleaning their offices… 
 
Whilst, hopefully, this is sounding fairly straight forward there can be more complexities if a TUPE or service provision is fragmented (contract given to several businesses) and identifying who is in scope for the TUPE etc.  There is also the question of what terms and conditions should / could or would transfer and then what happens if the service is changing after the transfer… 
 
One of my main success factors is to always get the right people involved, build relationships quickly, follow the process and ensure communication happens with everyone when it should.  After all for many employees involved, this is a difficult situation as they have not initiate the change it was a business decision.

Are you in or out? 

​In
This is where your business / team has won the service to be delivered.  From the example above this would be Shaun’s sparkles

​Out
This is when the service has been sold / awarded to someone else.  This would be Carol’s cleaning company.

​It is always my suggestion to work with the assumption that if staff work on the roles involved in the service that is being provided they will be considered as ‘being in scope’ of TUPE but would also always recommend working with a HR consultancy to get guidance on this and support with the process.
 
It can become complex quickly and as many people are involved with varying interests knowing what you should be doing legally for each individual and business is really important.  ACAS offer great insight into this https://www.acas.org.uk/tupe however I’d still always recommend working with a HR practitioner who has experience of TUPE! 
 
Impact to Service
 
The thought behind TUPE is that there should be no impact to the service being offered to the company – that’s easy to say but in practice it can be a challenge. 
 

The outgoing business, needs to hand over information, processes and of course are being impacted by the loss of the service not only in revenue but also staffing  so it can be a really challenging time.

For the business that has just been awarded the work, needs to get up to speed to offer the service from day dot!  They will need to have processes in place, staff onboard, access to complete the service.

But what about the person(s) involved in the process?   For those, it’s a really challenging time as they aren’t in control of what is happening to them.  I have often to say to people who are being TUPE’d:
​

Its like everything is changing, but nothing is

For that individual they aren’t having a choice over whether they move employers, or whether the service stays where it is – its happening and their options are to move with the service or resign from post.  Due to this communication is the key with these individuals – they are likely to go through a period of upset, facing the unknown and then having to get to know their new business.
 
I’ve been involved in TUPEs for many years and have even TUPEd myself when the whole business I was working for was acquired by another company.  That was a different experience but I was privileged to know what was going on throughout the process as I was the one leading it. 

​I’ve worked on TUPE’s from 1 person to 400 and even acquisitions of businesses that have then resulted in TUPE (a double TUPE) or redundancies.  

 
Whilst many think that TUPE is a ‘dark art’ it is more about doing the right actions at the right time and considering stakeholders and of course legislation!  

After all – worst case scenario and individual could take both the outgoing and incoming company to employment tribunal and no one wants that!  

​Some TUPE's that I've experienced have been: 

• Going to announce to staff about the TUPE and then having, at the 9th hour, to stop short and make up a reason of why I was on the company site. 
•  Having someone turn up at the office to explain they were TUPE’d  
• Having staff teams TUPE In and Out on a yearly basis due to winning and then loosing contracts 
• Having to double TUPE staff, where they come in and then out of a business a few days / hours later  ​

Here are a few of the areas of consideration that pop into mind when thinking about when faced with a TUPE and of course, Apiary Solutions are more than happy to partner with you for any TUPE’s but maybe not for Toupee’s!  

If you would like to find out more about TUPE or have any questions please either contact me or visit ACAS.

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