I am new to the TUPE transfer and have a query regarding which disciplinary process should be used for a person who has transferred in and is still within the protected period. I have read the ACAS guide and it has been very helpful but it doesn't say whose procedure i.e. incoming our outgoing companies, should be followed after the transfer
It would be great if anyone has dealt with this issue before and/or could point me to where I might locate this information.
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Replies
Hi Jane,
This has been previously tricky for me too as it doesn't seem to state this clearly anywhere!
I work within a small organisation with developing policies and tend to transfer staff over from large organisations or local authorities and it usually assists us to use the outgoing companies policies and the employees union reps have favoured this approach also. So I guess I have always used that way to be cautious.
Sarah has triggered me into a new train of thought now though- before transfer, consulting to transfer on new company policies. I hadn't even thought about that but it makes perfect sense especially as we Tupe from a large range of organisations in different Boroughs. Something I will definitely be looking further into.
Kellie
Hi Kellie
Thanks for your input into this, it's always good to hear how other organisations deal with this. I think the first thing I need to do is look at all the information to see what was covered contractually and then move forward from there.
Thanks again
Jane
Hi Kellie
Thanks! Just to clarify if the policies were contractual we could not seek to change these, only if they are non-contractual would I refer to this as part of the TUPE consultation. Of course the safest option is to leave as is and just transfer acorss, it depends on the business really.
All the best
Sarah
Hi Jane
Great question, and one which is one of those it depends.....ones. The wording in the regulations states that transfers include any rights and obligations "connected with" the contract which you think would include policies?
However a right or obligation must have some enforceable basis in law for it to transfer. TUPE preserves existing rights; it does not create them where none existed. So a purely non-contractual policy, for example, would not be enforceable against the transferee after the transfer if it was not legally enforceable against the transferor before the transfer either.
So the first thing I would establish is if the disciplinary procedure is contractual, if so it definitely transfers, likewise if it forms part of a Collective Agreement it definitely transfers. If it is a non-contractual policy it could arguably only transfer to the extent that it had been incorporated, expressly or impliedly (for example, by custom and practice), into the employees' contracts of employment, so I would want to check this out too.
Finally what was discussed during the consultation prior to the TUPE? When I have undertaken these we have been explicit about the employees transferring across to the new companies policies and procedures and have consulted on this point prior to the transfer.
In summary you should be OK if you are satisfied it is non-contractual, I would point out which policy you are using in the invite to meeting letter. In addition some wider form of communication around which policies and procedures applies should be considered.
I hope this helps.
Sarah
Hi Sarah
Thanks for the information, it is really helpful and will be looking at the transfer to see what was discussed. At this time, we are hoping that the issue can be dealt with without going to disciplinary stage but it is good to get this information just in case
Regards
Jane