Navigating TUPE: Transferring staff to a new PCN company
The Transfer of Undertakings (Protection of Employment) Regulations 2006, better known as TUPE, offers protections for employees when a business or service provider changes hands.
If a group of GP practices form a company acting for the Primary Care Network (PCN), understanding these regulations becomes paramount when considering the employment contracts of their staff.
Can changes be made to employment contracts under TUPE?
Under TUPE, employee’s terms and conditions are protected following a transfer. Changes to a contract of employment are only permitted in certain situations:
Economic, technical, or organisational (ETO) reasons
Changes can be made if there is an ETO reason entailing changes in the workforce. For example, a business restructure that involves a change in job roles, change in workplace location, or a need for redundancies may amount to an ETO reason. If the transfer into the new company involves any of these elements, it is possible that changes to terms and conditions may be permissible.
Agreement with the employee
Changes can also be made if they are beneficial to the employee and the employee agrees to them. It is crucial that any such agreement is reached freely and without coercion, and that the employee is fully aware of the implications of the change. This can be particularly important to those in roles funded under the Additional Roles Reimbursement Scheme (ARRS), where the nature of the work might be significantly different across practices.
Existing Contractual Provision
If there is a clause in the employee’s existing contract that allows for changes to terms and conditions, this may provide scope for adjustments.
Beware of unlawful contract changes
It’s important to note that any changes made solely or mainly because of the transfer are likely to be unlawful, unless one of the factors above applies.
Failure to adhere to TUPE regulations can result in costly legal disputes, harm staff morale, and lead to a decline in productivity.
In conclusion, whilst moving towards a standardised set of terms for all employees may be desirable for administrative simplicity and consistency, the new company must navigate the TUPE regulations carefully. It’s strongly recommended to seek expert legal advice before proposing or making any changes to terms and conditions of employment following a TUPE transfer.
Please note that this is a general overview and may not cover all possible exceptions and circumstances. The law surrounding TUPE is complex and specific, and legal advice should be sought in relation to particular situations.