What does TUPE say about information and consultation?
Where a school or college is transferred from one employer to another, individual and collective rights of the staff in the transferring school or college transfer too. TUPE says that employers must take particular steps before a transfer to a new employer can take place.
Employers must notify unions of specific categories of information.
Employers must also consult unions on any “measures” that are expected to be undertaken as a consequence of the change in employer. A “measure” can include any sort of change in working practices taking place before or after the transfer to the new employer. It can include significant changes like a redundancy exercise or a staff restructuring, as well as administrative arrangements such as changing the monthly pay date.
Your current and prospective employers also have duties to provide relevant information to each other.
Who will inform and consult with us?
This will depend on the category of school or college that you are employed in before the transfer. If your school is a community or voluntary controlled school, you are employed by the local authority, so the local authority has the duty to inform and consult.
If you are employed in a voluntary aided or foundation school, the school governing board is responsible, as your employer, for giving you information and carrying out any consultation.
If you work in a sixth form college that has been pressured to take academy status, the duty to inform and consult falls to the college corporation as your employer.
If you work in an existing academy which is to move to a multi-academy trust or to another sponsor, you are employed by the academy trust which is obliged to provide information and to consult.
In practice you are likely to be talking to your current head or principal throughout the transfer process. Depending on the status of your current school or college, the Union may also be in discussions with representatives from the local authority, school governors, college corporation, academy trustees or human resources.
How will the information be provided?
The current employer must provide certain information in writing to the NEU division and if appropriate to the NEU regional office. This is in addition to informing you as school or college rep.
In practice, the information is communicated to members in a number of ways. Most often, employers will provide this information in the form of what is known as a “measure letter”. Further details may also be provided via a combination of oral and written reports in consultation meetings, letters to staff, staff presentations and so on.
Regardless of how the information is provided, it is important that the Union engages with the process of information and consultation. You should scrutinise the information that the employer provides, keep in touch with your division secretary or other NEU contact, and discuss with your colleagues how and when you will raise any questions with the employer.
Responding to information and consultation
As soon as you know the proposed date of the transfer, liaise with your division secretary or other NEU colleagues on the time frame available, and what steps will need to be taken before the transfer takes place.
As we have said, the Union’s objectives will be to ensure that current terms and conditions are maintained, that collective agreements are upheld and that recognition and facility time arrangements are preserved.
The consultation process may differ according to the status of your current school or college, your current employer, your proposed new employer and whether the employers propose to make any changes in the course of the transfer.
If at any time you or your members are uncertain about anything that has been said or distributed, you should put in a written request for clarification. Your request should be addressed to both your existing employer and the new employer. You should ask for and make sure you get a written response and chase this up if necessary. We recommend that you take the following steps but not necessarily in this order.
- Liaise with your local NEU branch secretary or NEU contact
- Keep a written record
- Ask management to arrange a consultation meeting
- Encourage all members to attend the consultation meeting
- Ask questions
- Consult members
- Remind every member to assemble their employment records
- Where no measures are planned - seek confirmation
- Where measures are planned – make representations
Liaise with your local NEU branch secretary or NEU contact
Your local secretary or regional office should have received a formal communication about the transfer from your employer, but you may well know all about it before them. Keep in touch to ensure that you are fully informed.
Discuss with your local NEU branch secretary or NEU contact how to prepare for staff consultation meetings, meetings with members, and meetings with your head or principal or other employer representatives. And discuss who should attend these meetings.
Keep a written record!
It is important to keep documentary records of each stage of the consultation process, including any questions or representations you make and the responses you get. In the event the Union takes a “failure to consult” claim in the Employment Tribunal we will need to prove precisely what happened and when.
Your school or college group should therefore keep an evidence file with all the following documents (preferably in chronological order):
- Letters to staff informing of date of transfer, TUPE process, etc.
- staff presentations, slideshows, etc. – often emailed as PowerPoint slides
- staff structures and documents regarding slotting/matching
- redundancy selection criteria, matrices, etc.
- written correspondence (including emails) on issues raised by the Union, etc.
- issues and objections raised regarding any proposed changes
- trade union representatives’ minutes of meetings; the employer’s minutes may not tell the whole story!
Ask management to arrange a consultation meeting
In some circumstances there will be no threats to terms and conditions, and no planned changes to working practices. In other situations, your current or new employer might propose some changes.
Where any changes or “measures” are envisaged, TUPE requires that, in addition to information being given, there must be consultation with the unions.
Even if your employer tells you “there are not going to be any changes to terms and conditions” they still have a duty to provide information under TUPE. In addition to providing information in writing, it is expected that meetings are held to present information and to provide answers to questions about the transfer process.
Any information or consultation meeting should take place in good time before the transfer. Make sure that your branch secretary or NEU contact is aware of the situation and tell them if you have any difficulties getting information about proposed changes to your terms and conditions.
Encourage all members to attend consultation meetings
Use your member contact list and ask volunteers to encourage all members to attend the meeting. TUPE requires that there is an opportunity to exchange reasoned views; it does not require that agreement is actually reached in the consultation process. This is however an opportunity to exert some influence. Strong representations from union members in a well-organised school or college group can result in proposed changes being altered or abandoned.
It is important that accurate notes are taken at meetings so that any discrepancies, inconsistencies or ambiguities – between the information provided at the meeting and the information provided in writing – can be raised with the employer.
Questions should be raised with the employer during the information and consultation process.
If the information is discussed in a staff meeting, you may wish to involve NEU members in the process and suggest that your NEU members post some of the questions during the staff meeting.
The questions that should be asked during the process are set out in Resource C.
Even if information is divulged during a meeting, the employer must also provide it in writing to the NEU branch and, if appropriate, to the regional office. If you raise issues and objections regarding any proposed changes in meetings, follow them up with a formal letter/email asking for a written response.
Before any meeting with the head teacher or principal about the transfer, you should try to meet or talk with members in order that you can raise specific questions and concerns they may have.
You will find it useful to inform members what you have asked for and what you receive back. If possible you should try to allow time for members to respond to any communications you send or receive.
Try to press for face-to-face meetings with members as much as possible so that members have opportunities to ask questions and feel more part of the process.
Remind every member to assemble their employment records
Members should be reminded to take an active role in collating paperwork relating to their collective and individual contractual entitlements.
Some members might expect to be absent on maternity, adoption, parental or other leave, or might anticipate absence related to surgery or other medical interventions. If any member anticipates that they will be absent at the point of transfer, they should confirm this in writing and ask the current employer and the proposed new employer to keep them informed of all developments in relation to the transfer.
Where no measures are planned …
If you are informed that no “measures” are planned, liaise with your branch secretary or NEU contact. You could incorporate the list of “key questions to ask management” in Resource C into letters to your current and prospective employers. You will be seeking a comprehensive list of all existing contractual or agreed policies and procedures, together with confirmation that the current and new employers do not envisage any measures in respect of the listed policies and procedures.
Share the information you have with your members.
Seek a meeting with your head teacher or principal to discuss how protections for the future will be adopted by the new employer.
If it transpires, in spite of assurances to the contrary, that measure are planned, take the steps below.
Where measures are planned …
Where specific measures are planned, the employer should give you time to take away the information provided, to consult with members, to take advice and to make representations about the proposed changes.
Share the proposed changes with members and representatives from the other unions to find out whether the changes are acceptable. Discuss the proposals with your branch secretary or NEU contact to consider whether and how the changes could be challenged. You should then make written representations to your current employer and to your proposed new employer. The employers should respond and, if they disagree with your representations, they should state their reasons. You should report back to members.
For further guidance on what a measure is, see below: