Transfer of Undertakings (Protection of Employment) - TUPE

Who should read this page?

This page is primarily intended for Commercial Officers who are involved in either letting, re-letting or the termination of a contract. It will also be relevant to Project Managers, requirement owners and those responsible for business change strategies such as outsourcing (contracting out), in-sourcing (including militarisation) and sub contracting back to MOD.

What does this page provide?

This page briefly explains what the TUPE Regulations are, where you can find policy and guidance on the subject, identifies the main legal reasons why TUPE might affect your particular acquisition and provides details of where you can look for further advice and information.

What is TUPE?

The TUPE Regulations 2006 (as amended), preserve the continuity of employment and terms and conditions of those employees who are transferred to a new employer as a result of a transfer of a business (or undertaking), or a service provision change (a relevant transfer).

Where can I find policy and guidance on TUPE?

The TUPE Commercial Policy Statement [175KB PDF] details MOD’s Commercial Policy and Guidance on TUPE.

The MOD Policy and Processes for TUPE-Out and TUPE-In (held on the Defence Intranet - People Services Portal) details MOD’s Policy and Process for managing transfers of employees out of and into MOD. It provides guidance on Project Team and HR issues and employee and Trade Unions engagement.

JSP 507 – MOD Guide to Investment Appraisal and Evaluation External link to Internet content , (Section 4) provides guidance on the issues to be addressed when you are considering the business change options for delivering your acquisition.

The Code of Practice for Staff Transfers in MOD Contracts External link to Ministry of Defence Intranet content . jointly signed by MOD, its recognised Trades Unions, and the CBI, Defence Manufacturer’s Association and the Business Services Association provides best practice to be followed for the transfer of staff under TUPE in MOD contracts.

Links to relevant Cabinet Office/HM Treasury policy documents are contained within the Commercial Policy Statement (CPS) and/or the People Portal Policy Rules and Guidance (PRG).

What is the Legal Framework for the application of TUPE?

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) External link to Internet content (as amended) is the implementation by the UK of the European Community Acquired Rights Directive (77/187/EEC) as amended by Directive 98/50 EC and consolidated in 2001/23/EC.

The following are also relevant:

When does TUPE apply?

The Regulations can apply regardless of the size of the business and apply equally to both Public and Private Sector (including charities).
Subject to certain qualifying conditions the Regulations provide employment rights to employees in situations which amount to a “relevant transfer”. To understand the definition of a relevant transfer please refer to the TUPE Commercial Policy Statement [175KB PDF].

What are the general principles when dealing with TUPE?

Always assume that TUPE may apply to your procurement.
TUPE has legal, financial, commercial, HR and procedural aspects which need to be understood, considered and managed as an integral part of the project using a whole team approach.
Failure to properly manage the HR and staff transfer aspects of the project will inevitably delay timescales for award of contract and may result in legal action against MOD.

What is mandated when dealing with TUPE?

Acquisition Teams must work in accordance with the policy and guidance set out above.

Acquisition Teams must seek early internal legal advice directly from CLS in accordance with the Commercial Policy Statement.

Advice must be sought from CPET or DCP:

Where any aspect of the current service is carried out overseas (including Northern Ireland).
Where the tenderer indicates that future delivery of the service will be carried out overseas.

Commercial Officers must obtain suitable clauses from CPET for inclusion in the Invitation to Tender/Invitation to Negotiate (ITT/ITN) and must not use TUPE conditions from previous contracts.

Where do I go for advice?

Contact	Phone / Email	Area
Director General Defence Commercial – Commercial Systems	DGDCCS-2D-1@mod.uk Civ: +44 (0) 306 793 2819 Mil: 9679 32819	For advice on this document and specific TUPE Commercial policy advice
Commercial Project Enablement Team – Partnering Support Group	DESComrclPET-PartneringSpGp6@mod.uk Civ: +44(0)1225 468629 Mil: 9355 68629	For specific advice on commercial aspects of TUPE including provision of contract clauses and Notes to Tenderers.
The relevant Head of Commercial	Senior Commercial Officer (SCO)	For business specific application and to refer contentious cases to Director Commercial or Director General Defence Commercial.
Central Legal Services – Commercial Law Division	CLS-CLPG1@mod.uk Civ: +44(0)30 679 30546 Mil: 9679 30546	For legal advice in the application and use of TUPE
Director Civilian Personnel	DCP-EFTUPE1@mod.uk Civ: +44 (0) 207 218 0197 Mil: 9621 80197	For advice on specific HR/TUPE Policy issues
PPPA Focal Point via People Services Centre	Mil: 93345 7772 – listen for the TUPE option	For provision of HR Information, transactional services for pensions and payroll transfer, Coordination of APAC services, Personnel advice and guidance service.

What training is available on TUPE?

There is no specific training on the commercial aspects of TUPE but a number of Defence Acquisition courses cover aspects of the subject:

Commercial Awareness and Practitioner Programme (CAPP) module “Other Considerations for Procurement”
Legal Awareness Workshop (LAW)
TUPE elearning (VR075) for issues relevant to MOD Civil Servants in a TUPE situation.

What further reading might help?

Additional documents:

Example questions for inclusion in Pre-Qualification Questionnaire [47KB PDF]
Key Commercial Activities and Timelines for Competitive Action [40KB PDF]
Frequently Asked Questions [50KB PDF]
Outsourcing – Award Evaluation Criteria [26KB PDF]
Example Letter Seeking Employee Information [50KB DOC] (see CPS Annex C)
Spreadsheet [19KB XLS] for use with the Example Letter above

AOF - Commercial Toolkit Content:

Internet:

Change History

1 May 2010: Amendment to Additional Document: Example Questions for Inclusion in PQQs - question 5.
1 December 2009: Commercial Policy Statement (CPS) V1.0 dated 01/12/09 issued to reflect the refreshed guidance on TUPE. The CPS is accompanied by additional useful documents and links to other TUPE policy. You are advised to familiarise yourself with the refreshed guidance and to contact the appropriate Sponsor if you have any questions regarding the content.
1 September 2009: Topic Authoritative Guidance reformatted as an acrobat pdf download.
1 August 2009: Complete re-write of topic guidance including new Annexes A to D.
1 May 2009: Change of Sponsor title from DCD-DCS-2a
1 April 2009: Revised Attachment 1 to Annex B.
1 September 2008: Minor update to Annex B.
1 August 2008: Minor edits to support departmental name changes.
1 September 2007: Updated to include a new Annex - B and Attachment to be used when seeking employee information from existing contractors where the current contract does not include the necessary conditions. Paragraph 54 refers.
1 May 2007: Change to Sponsor title from CSG-Risk.
1 April 2007: Minor edits to support Departmental name changes.
1 July 2006: Updated to include guidance on the Code of Practice on Workforce Matters in Public Sector Service Contracts and the new TUPE Regulations 2006. It also sets a new procedure for obtaining draft ITT / Contract documents.