2 April 2012
• HR Principles – what we are trying to achieve
• The Basics – to get us all to the same level of
• Transfer of Functions - agreeing what will be transferring
• Pre-transfer selection – TUPE or not TUPE
• Transfer Process – the steps
• What next – help with the process
• Any Questions – we expect a few!
HR Framework principles
The HR Transition Framework guides our approach to
people transition, to:
• Retain valuable skills and experience
• Comply with relevant employment legislation
• Minimise redundancies
A principle of the transition programme is to protect the
current terms and conditions of employment for staff and
to minimise disruption to the service.
Staffing new organisations
Staff will be employed in the new organisations by either:
1. Transferring with their function (which may involve a
competitive process if there are less jobs in the new
organisation than in the old)
2. Through redeployment and a competitive recruitment
process, if there is no transfer
Legal Basis
There are two legal bases for transfer:
1. TUPE is a matter of law and is complex when
– a recognisable economic entity transfers that retains
its identity post transfer
– there is a service provision change
2. Transfer Scheme (Order)
– The Health & Social Care Bill contains general
powers to effect transfer schemes, if appropriate to
do so, and these powers support the use of COSOP
(which protects the terms and conditions of staff
involved in transfers)
Henke & COSOP
• Some current changes will be classified as structural
reorganisations of public administration, or the transfer of
public administrative authorities, which are exempt from
TUPE, through the Henke exemption.
• Was developed by Government as a mechanism to
support effective transition and transfers between public
sector bodies. It is a policy so that when TUPE does not
apply in strict legal terms, the principles of TUPE should
be followed.
Transfer decision process
• People and Functions map used for initial planning purposes
(predominantly for national bodies)
• Receivers confirm which functions they will be undertaking in future
and whether they believe the function will transfer or not
• Senders and Receivers need to agree:
• Is this a transfer
• Is this a TUPE transfer
• Is this TUPE transfer but Henke exempt
• Both organisations are advised to take independent legal advice to
ascertain whether TUPE applies
• If in agreement, Transfer Order can be used to affect transfer and
specify T&Cs of transferring staff
Pre transfer selection
• There will be some functions where there is agreement to
“lift & shift” all staff to maintain continuity of service
• There will be some functions where the numbers
currently working in those functions are greater than
those needed in the new organisations and there will be
a pre transfer selection process as outlined in the PTPs
• If TUPE applies to these functions, care will need to be
exercised as employees cannot be put “at risk” and have
the right to transfer unless they wish to opt out
• The intention is only transfer staff who secure a job in the
new organisation and any other staff who have a legal
right to transfer
Transfer process
1. Receivers and Senders agree which functions will transfer as is –
“lift and shift”
2. Receivers and Senders agree which functions will transfer but
number of posts in new organisation are lower, there will be a
competitive slot-in process
3. Where employee in transferring function does not obtain a position
through Step 1 or 2, they will be placed “at risk” and considered for
any suitable remaining vacancies (TUPE warning)
There will be roles in the new organisations that will not be covered
by a transfer situation. These roles will be available for staff who
are Affected by Change or At Risk – if they remain unfilled they will
be advertised to the wider system and eventually for open
competition in line with the PTPs
What next?
• Further guidance will be available to support HR
Practitioners on key areas of activity, including Due
Diligence, Communication & Consultation, Practical
Arrangements and Integration
• DH Lawyers drafting Transfer Orders which can be used
to protect pay, T&Cs, continuity of service and pensions
(if agreed)
• Important for Senders and Receivers to share
organisational design and begin dialogue about functions
and potential transfers
Any Questions ………….?

Transfers - April 2012