TUPE Protection and a fragmented workforce

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2011 Health Care Service Group Conference
3 December 2010

Conference notes with concern the twin developments of the commitment of the Tory-Liberal Government to an ‘any willing provider’ approach to NHS services and the erosion of the value of TUPE as a protection for NHS staff transferred to other providers.

Previously TUPE, the Cabinet Office Code of Practice on Transfers in the Public Sector and Direction Employer Status under the NHS pension scheme had together been seen as offering a fair degree of protection to transferred staff.

Three recent developments must lead us to question this:

1)European Court of Justice judgements breaking the link to annual pay awards;

2)Employers more willing to argue that economic conditions justify a break from TUPE’d contracts;

3)More transfers to private sector providers who are not able to offer continued NHS pension scheme membership.

This leaves the situation for the increasing number of members facing the prospect of a TUPE transfer out of the NHS looking bleak.

Conference calls for a re-appraisal of the union’s strategy towards transfers out of the NHS. Where we can we should be seeking transfer agreements that offer the best obtainable protection for members. Model agreements for such a ‘TUPE plus’ deal should include an explicit commitment by new employers to shadow pay increases and other improvements in terms and conditions. Where such an agreement is not offered we should be prepared to vigorously resist transfer by a combination of campaigning, legal and industrial means.

We believe that this requires:

a)a comprehensive model agreement so we know what to ask for when staff are transferred out of the NHS and do not take anything for granted;

b)that the model agreement is kept up to date as new legal issues emerge;

c)a campaign strategy that provides advice, training and materials in support of the model agreement – for example briefings that can be adapted locally to explain what we are seeking and why, for our members;

d)a fast track route to specialist legal advice during transfer negotiations;

e)a method of checking that agreements reached either reflect the model agreement or are the best that are obtainable in the circumstances of a particular transfer;

f)better provision for the portability of the NHS pension scheme between employers, including private sector employers undertaking work on behalf of the NHS.

If branch officers are to undertake such negotiations (and Transforming Community Services has left many branches facing multiple transfers) we need both specialist training and direct access to means of getting TUPE agreements checked.

Given the increasing willingness of members to complain and even take legal action about the quality of advice and representation that has been given over such complex matters we also believe some sort of safeguard through checking (either by Regional Organisers or lawyers) is necessary to protect both local reps and the union.