Having an understanding of how a transfer to a new employer will affect your school or college and your colleagues, will help you to respond to any questions that members may have about the transfer. It will give you the confidence to participate effectively in the transfer process. This in turn will help develop the strength of your school or college group and will stand you in good stead to continue as a strong bargaining unit with your new employer.
Your involvement in the transfer process is invaluable to your school or college group and to the NEU as a whole but you are not expected to be an expert in these matters. Support and advice is available from your branch secretary and other colleagues within the NEU.
This is an introduction to the legal protections that the Union will rely on during a transfer to a new employer. It is also to help you to become familiar with some of the language and concepts that are involved in the process.
A change of employer
The first of these concepts is the change of employer. 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 are transferred to the employer under TUPE.
TUPE applies in all of the following changes to a school or college which involve a change in employer:
- a school choosing to become an academy
- a school being forced to transfer to academy status
- an existing academy joining a multi-academy trust or otherwise transferring to a new academy employer
- a sixth form college being pressured to become an academy.
Although many of the steps prior to a transfer to academy status have been removed by the Education and Adoption Act 2016 employers are still required to follow the strict legal requirements under TUPE.
In brief, TUPE states that:
- employers must provide specific information on proposals
- employers must consult with trade unions on certain proposed changes
- employees of the current employer become employees of the new employer
- employment contract with the current employer transfer as if they were made with the new employer
- collective agreements with the current employer transfer as if they were made with the new employer
- unilateral and detrimental changes to members’ contracts by new employers will not be valid
- the current employer must provide information to the new employer on the transferring staff one month before the transfer
TUPE requires that employers provide information about the transfer in advance and consult the Union about any changes to working arrangements that are being considered. These changes are referred to as “measures”.
TUPE states that the following information must be provided in good time before the transfer:
- the proposed date of the transfer;
- any “measures” (i.e. changes in working practices) which are “envisaged” either by the current employer before the transfer, or the new employer after the transfer
- any legal, economic and social implications of the transfer.
A “measure” is any sort of change in working practices taking place before or after the transfer. In some circumstances there will be no threats to terms and conditions, and no planned changes to working practices. In other situations, your current employer might intend to make some changes; and changes might be proposed by the new employer.
The term “measure” can include significant changes like a redundancy exercise or a staff restructuring, as well as administrative arrangements such as changing your pay date. More detailed advice on measures and how to respond to proposed changes can be found below:
The implications of the transfer
The Union must be informed of the legal, economic and social implications of a transfer. Your employer must provide information on the impact that the transfer will have on members’ future employment.
This includes implications for employees’ future terms and conditions, pay, eligibility for workplace benefits, career prospects, pension arrangements, and so on. This will usually be provided in the form of a “measures” letter but may be divulged during an information or consultation meeting with staff.
More detailed advice on how you, your branch and members can ensure that you are clear on which terms and conditions are transferring can be found in Understanding Which Rights Transfer.
TUPE states that where measures are envisaged by an employer, there is a duty to consult union representatives “with a view to seeking agreement” to those measures.
Sufficient time should be allowed for the Union to consider whether it believes that any of the proposals will involve changes of “measures” and to engage in consultation on those. It is important to bear in mind that, even without TUPE, employers should be negotiating and consulting with the Union on changes to working practices as part of ordinary bargaining arrangements.
There is no minimum timescale for the entire consultation process under TUPE. In a transfer to a new employer, we would expect it to be a matter of months rather than days or weeks. The Union would not consider it reasonable to include school or college holidays in this calculation, as members will not be available for consultation.
Advice on how to respond to a consultation is set out below:
Transfer of staff, terms and conditions and collective agreements
TUPE protects each employee’s existing contractual position when a school or college is transferred from one employer to another employer. Employees of the current employer (known as the “transferor”) automatically become employees of the new employer (known as the “transferee”). It is as if their employment contracts had originally been made with the new employer.
These protections continue after the transfer to the new employer. If a new employer wishes to change members’ terms and conditions it must consult and negotiate with the trade unions.
The Academy Transfers guidance outlines these rights to information and consultation. It also provides guidance on how individual and collective rights are protected when members are transferred to a new employer.
Due diligence and employee liability information
A month before the transfer takes place, your employer is required to provide information on the terms and conditions of employment of every employee to the new employer. This includes all individual contractual entitlements set out in collective agreements between the recognised unions and the employer. The technical term for this is “employee liability information” as it relates to all the employees that the current employer has a contract with. Many employers and human resource units refer to the process of providing this information as the “due diligence” exercise as the employer must be diligent in providing all the information it holds on the transferring employees.
More information on how to take advantage of this stage in the transfer is set out below: