Transfers 2 April 2012 Transfers • HR Principles – what we are trying to achieve • The Basics – to get us all to the same level of understanding • 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! 2 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. 3 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 4 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) 5 Henke & COSOP HENKE • 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. COSOP • 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. 6 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 7 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 8 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 9 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 10 Any Questions ………….?