Neath Port Talbotcounty Borough Council

Neath Port Talbotcounty Borough Council

Neath Port TalbotCounty Borough Council

TUPE Transfer Protocol

Transfer of NPT Council Staff

to NPT Homes

Please note that this document should be read

in conjunction with the WHQS Staff Pledge

TUPE Transfer Protocol

1Introduction

1.1The proposed transfer of the Council's housing stock to NPT Homes raises a number of employment issues. Some employees will transfer to the employment of NPT Homes whilst some will remain employed by the Council (but will nevertheless be affected by the transfer, e.g. as a result of the need to re-organise a "residual" service which may remain within the Council).

1.2This Protocol has been developed so that the Council, its employees, NPT Homes and the recognised trade unions have a clear framework within which to address relevant employment issues arising, so that the transfer may proceed in a timely way and with minimum disruption. This Protocol applies to those employees who will transfer to NPT Homes and also those who currently carry out some housing-related work (directly or indirectly), but who will remain with the Council.

1.3This Protocol does not affect an employee’s statutory rights under TUPE.

2Equal Opportunities

2.1Employment issues affecting NPT Council employees arising in relation to the proposed transfer will be progressed in accordance with the Council's existing Equal Opportunities in Employment Policy.

3Communications between the Council and NPT Homes

3.1The Council and NPT Homes will communicate with each other throughout the transfer process in a regular, structured, open and positive way. Each party will promptly raise any concerns arising with the other so that any issues arising can be resolved fairly, quickly and within a spirit of co-operation.

4Consultation with Employees and Trade Unions

4.1The Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) imposes obligations upon the Council and NPT Homes to provide certain information and to consult in respect of affected employees. The Council’s obligation is to provide information to, and to consult with, employee representatives (ie trade unions recognised by NPT Council)in respect of those employees who will be affected by the transfer. NPT Homes’ obligation is to provide the Council with sufficient information to enable the Council to discharge its consultation obligations.

4.2Under TUPE, trade unions must be informed of the following:

  • the fact of the transfer and when it is to take place;
  • the reasons for the transfer;
  • the legal, economic and social implications of the transfer for affected employees;
  • the measures which the Council envisages taking in relation to the affected employees and if no measures are envisaged, that fact, and;
  • the measures which NPT Homes envisages will be taken in relation to those employees who will be transferred, and if not measures are envisaged, that fact.
  • Formal management / trade union consultation will be conducted through locally agreed consultative arrangements.
  • Where appropriate, some consultation may be undertaken by members of the WHQS team directly with employees and trade unions. Other consultation may take the form of answering queries and providing staff newsletters, with the aim of keeping employees informed of important transfer issues and any other associated developments which may affect them.Both formal and other consultation undertaken by the Council and/or NPT Homes may be used as evidence of satisfaction of TUPE consultation obligations.
  • Trade unions will be provided with copies of relevant general correspondence sent to employees and, where appropriate, will be consulted in advance about the content and timeliness of such correspondence.

5TUPE

5.1TUPE protects employees who are "wholly or substantially" employed in the undertaking which is transferring. Where TUPE applies to an employee, the employee will transfer from the Council to NPT Homes on the same terms and conditions of employment that they were on before the transfer took place. Further details are set out in the NPT Council/ NPT Homes Staff Pledge which has been developed by the Council and NPT Homes in partnership with the trade unions.

5.2For most housing employees in housing management and building services, it will be obvious that they are wholly or substantially employed in the housing service work which is transferring to NPT Homes and that TUPE will apply to them.

5.3However, the question of whether or not TUPE applies to an employee is less clear in circumstances where an employee spends some of his or her time performing housing related work and some of his or her time performing other Council work. In such cases, it will be necessary to examine a number of factors including the:

  • percentage of time the employee spends working in the undertaking which is transferring and the cost of the employee’s services has been allocated between different parts of the business; together with
  • thevalue given to this work; the type of work the employee may be required to undertake under his or her contract of employment and the effect that transferring or not transferring would have upon the employment of the employee.

This assessment can be difficult to undertake. As a general guide, the Council will regard TUPE as applying to those employees (both within housing and other services) who spend 60% or more of their time working in an undertaking which is transferring to NPT Homes, but this may, on occasions, need to be varied in relation to some employees having regard to the specific circumstances applicable to an assessment of what constitutes “wholly or substantially” employed, which will continue to be the underlying principle involved.

5.4Some employees who are not covered by TUPE may nevertheless agree to transfer. NPT Homes will treat any employees who transfer by agreement as though TUPE applies to them. The "Statement of Practice for Staff Transfers in the Public Sector" applies to the Council as a public sector body and requires that such employees be treated in accordance with the principles of TUPE.

6Drawing up the Transfer Lists

6.1The Council will initially decide which employees will transfer and will prepare a provisional transfer list of transferring employees.

6.2List A(i) will be those employees as assessed by the Council who are “wholly or substantially” employed on the provision of transferring housing management and building services work and who will be regarded as transferring to NPT Homes under TUPE.

6.3List A(ii) will be those employees as assessed by the Council who are “wholly or substantially” employed on the provision of transferring housing work in other services and who will be regarded as transferring to NPT Homes under TUPE.

6.4List B will be those employees as assessed by the Council who are not “wholly or substantially” employed on the provision of transferring housing work but who may transfer to NPT Homes by agreement between the employee, the Council and NPT Homes.

6.5The Shadow Board will decide, prior to the TUPE transfer, which services, if any, will remain with NPT Council and a contract/SLA established for these services. This decision will be made as soon as reasonably practicable and notified to all concerned. This may affect employees working within that service area and for those working in roles on the SLA which it is agreed will eventually transfer, this transfer will be delayed for the duration of the contract/SLA. This will be advised to those affected employees in writing prior to the date of the TUPE transfer.

6.6Employees identified in each of the transfer listsreferred to in paragraphs 6.2, 6.3 and 6.4 above will be notified in writing as soon as possible after the Council produces each transfer list. The transfer lists will be reviewed and updated regularly.

6.7The Council will agree a final transfer list with NPT Homes comprising of List A(i), List A(ii) and List B and will publish the final transfer list at least 10 working days before completion of the transfer.

7Procedure For Dealing With Support Staff Issues In Connection With The Transfer

7.1This section of the Protocol applies mainly to those employees whose work includes providing support services to the housing service which will transfer to NPT Homes ("support staff") and for that reason support staff are referred to throughout this paragraph 7, although the principles are applicable to the transfer as a whole. In applying this Protocol, the Council will pay due regard to any TUPE rights which support staff may have.

7.2The purpose of the procedure is to seek to ensure that the appropriate number of employees and the necessary skills are available post transfer to both NPT Council and NPT Homes.

7.3It is not difficult to identify the majority of those employees in the Council’s housing service who should transfer to NPT Homes. However, issues can arise in respect of employees who work in other parts of the Council and who provide support services to the Housing Division. The issues are best described by the following examples:

Example 1 - "Too many support staff on the initial TUPE list"

7.4If ten support staff each spent 80% of their time on housing work, there may be sufficient work with NPT Homes for eight of the support staff and sufficient work with the Council for two of the support staff.

7.5However, because each of the support staff spends more than 80% of their time on Housing work all of those ten support staff would be assigned to the initial TUPE list. Under TUPE, all are likely to transfer to the NPT Homes and there may be a consequential mis-match between the number of people transferring and the number of jobs available within NPT Homes.

Example 2 - "Insufficient staff on the initial TUPE list"

7.6If ten support staff each spend 30% of their time on housing work, then – following transfer - there may be sufficient work within NPT Homes for three of the support staff and sufficient work within the Council for seven of the support staff.

7.7However, because noneof the support staff are “wholly or substantially” employed on housing work none of the ten support staff would be assigned to the initial TUPE list. NPT Council Heads of Service should therefore as soon as possible advise NPT Homes how many actual FTE jobs (and at what pay grade/s) this would equate to.Volunteers to transfer should then be sought.

7.8In the examples outlined, if TUPE provisions alone were relied upon, a scenario could develop where one organisation had an excess of some specialist skills and the other organisation had a shortage of such specialist skills. In these circumstances it is essential for the Council, NPT Homes and the trade unions to adopt a selection process which will determine which support staff should transfer to NPT Homes and which support staff should remain with the Council.

7.9The selection process will be as follows:

7.9.1The number of support staff posts (FTEs) to transfer from the Council will be agreed between the Council and NPT Homes.

7.9.2Volunteers for transfer will be requested from amongst those support staff to whom the Council determines the procedure will apply

7.9.3If there are more volunteers than posts, then those employees with the higher percentage of working week hours spent supporting the services which will transfer to NPT Homes will usually take priority. Relevant work/ activity records over a suitable period of time may assist in this process.

7.9.4If there are fewer volunteers than posts, then the relevant staff should be advised that post transfer, there will be too many support staff remaining with the Council and that a restructuring exercise will probably be required to reduce job numbers to the required level.

7.10Any employees who are aggrieved at their selection or non-selection for transfer may appeal under the TUPE Grievance Procedure, attached at AppendixA.

7.11Where support staff selected to remain with the Council have a TUPE right to transfer (that is, in circumstances where there are too many support staff with a TUPE right to transfer) and the employee/s insist on exercising their right to transfer, the Council will inform the employee/sthat they cannot necessarily be guaranteed employment by NPT Homes after the transfer.

7.12In certain cases, it will be important to recognise that the work of some employees will be affected by the additional work created by the transfer process. Careful consideration will be given in such cases to the appropriate reference period used in calculating the amount of work undertaken in support of the service/s that will transfer to NPT Homes.

7.13The intention of this Protocol is to seek to minimise a mis-match between the number of jobs and number of employees both within NPT Council and NPT Homes. However, nothing in this Protocol is intended to limit the rights of the Council or NPT Homes to address any mis-match in accordance with the relevant management of change policy or any statutory provisions which may apply. Both NPT Homes and the Council will maintain "at risk" registers, or similar, for those employees who may find themselves at risk of redundancy. To assist, all vacancies within the Council and NPT Homes will be offered to the relevant ‘at risk’ employees prior to internal/external advertisement.

8Appeals Regarding Transfer List

8.1Any employee who is aggrieved by a decision taken to include him/ her on, or to exclude him/her from, the transfer list may appeal under the Council’s TUPE Grievance Procedure (attached at Appendix A). Every effort will be made to reach a decision in relation to each employee affected by the transfer that is acceptable to all parties, although this cannot be guaranteed.

8.2If an employee is included on the transfer list but objects (before the transfer) to being employed by NPT Homes, the employee will be made aware that if TUPE applies to the employee, he/she may be deemed to have resigned from the Council with effect from the transfer date without any right of redeployment or a redundancy payment. The Council will only consider requests not to transfer in genuinely exceptional circumstances. This position will be set out in the initial TUPE notification letter sent to all employees identified for inclusion on the transfer list.

9Filling NPT Homes Vacancies

9.1Stage 1 – Chief Executive and Other Senior Management Team Appointments

NPT Homes will identify a number of key senior management posts to be filled before the transfer takes place. As at June 2010, two such posts - Chief Executive and Finance Director – have been advertised, in the absence of any existing NPT employee being a TUPE match to these posts. The Chief Executive will develop the remainder of the Senior Management Team structure, with the Shadow Board, following his/her appointment.

It is anticipated that appointments will be made to the posts of Chief Executive and Finance Director by the end of July 2010.

9.2Stage 2 – Matching

Those employees occupying NPT Council posts immediately before the transfer, which are a "near equivalent", i.e. the same or virtually the same as a NPT Homes post, will be matched to such posts. It is anticipated that most employees will be allocated to a post in the new NPT Homes structure at Stage 2 in the process.

9.3Stage 3 – Suitable Alternative Employment

Any employees on the transfer list who have not been matched to a post at Stage 2 will be offered any suitable alternative employment which may exist within NPT Homes. Where NPT Homes considers it to be appropriate, it may conduct interviews to determine whether or not a transferring employee is suitable for the alternative post/s available, or to determine who is the most suitable transferring employee for the post where there is potentially more than one transferring employee suitable for a particular post. After interviews and the selection process has been completed,NPT Homes need only offer the most suitable available post to any employee.

9.4Stage 4 – NPT Council "At Risk" Employees

Any remaining NPT Homes vacant posts will be advertised on a ring fenced basis to Council employees who are not on the transfer list but who nevertheless have been affected by the transfer and are at risk of redundancy. Appointments will be on merit.

9.5Stage 5 – Advertising Externally and Internally

Any remaining posts will then be advertised both externally and internally within the Council and NPT Homes to ensure that NPT Homes has the opportunity to appoint the best available person to the post. Appointments will be on merit. Any employees on the transfer list who have already been allocated to a post under Stages 2 or 3 may apply for a different or more senior post at this Stage.

10Employees Remaining With NPT Council

10.1It may be necessary for the Council to undertake a restructuring exercise as a result of the transfer of its housing and associated functions and employees to NPT Homes. This may result in a change of role and pay grade for some employees, which the Council will implement after full consultation, in line with the Council’s Managing Change in Partnership Agreement.

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