TUPE or not TUPE

w00519773

I work in the public sector - my department was managed by a private sector organisation since 2008.  Later this year the department is going back under public sector control.  My T&Cs were transferred from public sector to private sector in 2008 and now I have the option to TUPE back.  I am eligible to rejoin LGPS regardless of what option I choose and my salary will remain the same regardless of what option I choose.  Here are the benefits:

1) Hours reduce from 40 to 37.5

2) Annual leave increases from 27 days to 34 days

3) Sick leave entitlement is slightly better though I have never used it (touch wood)

4) Better organisation to have a contract with

The limitations are as follows:

1) I am paid above the top end of the salary range (because I have been there so long and was also offered a pay rise to stay rather than leave on a few occasions).  If I TUPE; I will no longer receive a pay rise until my salary falls in the bounds of the role.  I would receive a payrise at the discretion of the head of the oranisation if I stayed on the public sector contract i.e. all on the private sector contract would receive a rise or none would.

2) My role is being regraded and if successful (I am told it will be); I will have to give three months notice if I wanted to leave in future.  On the private sector contract I must give one months' notice and the existing public sector grade must give two months notice.

I am a member of a union and they have said they tried to negotiate on others behalf with regards to point one but were unsuccessful - bein informed that TUPE is optional and if they stay on the current T&C's then they may receive a pay rise.  If the regrade is successful then my salary should fall within the bounds in about two years.

Grumpy_chap

It seems as though you stay in your job, do less hours per week, 7 days annual leave extra, better pension and stay on current salary but no rise for a couple of years.

I'd probably take that - if it doesn't work out, you can still look for alternative employment.

Assuming there is no redundancy option, the other choice appears to be to stick with current contract in full, so none of the wins but the possibility of a pay rise in the two years.  The possibility of the pay rise might well not translate into an actual pay rise.

w00519773

Grumpy_chap said:

It seems as though you stay in your job, do less hours per week, 7 days annual leave extra, better pension and stay on current salary but no rise for a couple of years.

I'd probably take that - if it doesn't work out, you can still look for alternative employment.

Assuming there is no redundancy option, the other choice appears to be to stick with current contract in full, so none of the wins but the possibility of a pay rise in the two years.  The possibility of the pay rise might well not translate into an actual pay rise.

What about the three month notice period? I guess I could look at this as a positive i.e. if I decide to move on then it shows that I am more valued with a longer notice period.

Grumpy_chap

It seems to be "all or nothing" so if the long notice period concerns you, stick with the current contract.

pensionpawn

So you can be TUPE'd from the private sector to the public sector? I can't see that mentioned in the ACAS guidance. It is also legal to withhold a cost of living pay rise to staff recently TUPE'd across whilst existing staff see their salaries rise? If a company's contract with a government department comes to an end is there an option to decline TUPE and elect for statutory redundancy pay? If a pay freeze for recently TUPEd staff is possible, with a difference in salaries of £36k in the public sector compared to £44k for incoming TUPEd staff, the length of the pay freeze is likely to make staff look elsewhere rather than accept the TUPE. Early days, just trying to learn about a process I've not been through before.

Andy_L

pensionpawn said:

So you can be TUPE'd from the private sector to the public sector? I can't see that mentioned in the ACAS guidance. It is also legal to withhold a cost of living pay rise to staff recently TUPE'd across whilst existing staff see their salaries rise? If a company's contract with a government department comes to an end is there an option to decline TUPE and elect for statutory redundancy pay? If a pay freeze for recently TUPEd staff is possible, with a difference in salaries of £36k in the public sector compared to £44k for incoming TUPEd staff, the length of the pay freeze is likely to make staff look elsewhere rather than accept the TUPE. Early days, just trying to learn about a process I've not been through before.

Yes, 

Yes. The point of TUPE is that you transfer on your existing T&Cs so if the transferred staff didn't have a contractual right to a cost of living pay rise then they have no right to one. You are free to agree to Tx to the new employers T&Cs if you wish to - generally pay rises are withheld from transferees to encourage them to agree, typically at the expenses of better T&Cs they had before (eg holiday, pension, sick leave etc)

No. If you decline to transfer to the new employer then you are deemed to have resigned

pensionpawn

Andy_L said:

pensionpawn said:

So you can be TUPE'd from the private sector to the public sector? I can't see that mentioned in the ACAS guidance. It is also legal to withhold a cost of living pay rise to staff recently TUPE'd across whilst existing staff see their salaries rise? If a company's contract with a government department comes to an end is there an option to decline TUPE and elect for statutory redundancy pay? If a pay freeze for recently TUPEd staff is possible, with a difference in salaries of £36k in the public sector compared to £44k for incoming TUPEd staff, the length of the pay freeze is likely to make staff look elsewhere rather than accept the TUPE. Early days, just trying to learn about a process I've not been through before.

Yes, 

Yes. The point of TUPE is that you transfer on your existing T&Cs so if the transferred staff didn't have a contractual right to a cost of living pay rise then they have no right to one. You are free to agree to Tx to the new employers T&Cs if you wish to - generally pay rises are withheld from transferees to encourage them to agree, typically at the expenses of better T&Cs they had before (eg holiday, pension, sick leave etc)

No. If you decline to transfer to the new employer then you are deemed to have resigned

Thanks for that. So, if the contract of transferring staff does specify an annual cost of living rise, how can they be transferred on current salary with a future pay freeze?

Andy_L

pensionpawn said:

Andy_L said:

pensionpawn said:

So you can be TUPE'd from the private sector to the public sector? I can't see that mentioned in the ACAS guidance. It is also legal to withhold a cost of living pay rise to staff recently TUPE'd across whilst existing staff see their salaries rise? If a company's contract with a government department comes to an end is there an option to decline TUPE and elect for statutory redundancy pay? If a pay freeze for recently TUPEd staff is possible, with a difference in salaries of £36k in the public sector compared to £44k for incoming TUPEd staff, the length of the pay freeze is likely to make staff look elsewhere rather than accept the TUPE. Early days, just trying to learn about a process I've not been through before.

Yes, 

Yes. The point of TUPE is that you transfer on your existing T&Cs so if the transferred staff didn't have a contractual right to a cost of living pay rise then they have no right to one. You are free to agree to Tx to the new employers T&Cs if you wish to - generally pay rises are withheld from transferees to encourage them to agree, typically at the expenses of better T&Cs they had before (eg holiday, pension, sick leave etc)

No. If you decline to transfer to the new employer then you are deemed to have resigned

Thanks for that. So, if the contract of transferring staff does specify an annual cost of living rise, how can they be transferred on current salary with a future pay freeze?

AIUI They can't be. Is that what has happened? 

Does their existing contract say they must have an annual CoL rise of X% or is it discretionary? (I've never seen the former - only that there must an an annual review which could decide the annual increase is zero)

Have they agreed to transfer to the public sector T&Cs? So gained a Public Sector pension etc but are subject to mark-time until departmental pay catches up

Did TUPE actually apply or are they one of the classes of worker to whom it doesn't apply because of they way they were contracted by the previous employer

Is it a cost of living rise they're not getting or a pay progression increase?

pensionpawn

Andy_L said:

pensionpawn said:

Andy_L said:

pensionpawn said:

So you can be TUPE'd from the private sector to the public sector? I can't see that mentioned in the ACAS guidance. It is also legal to withhold a cost of living pay rise to staff recently TUPE'd across whilst existing staff see their salaries rise? If a company's contract with a government department comes to an end is there an option to decline TUPE and elect for statutory redundancy pay? If a pay freeze for recently TUPEd staff is possible, with a difference in salaries of £36k in the public sector compared to £44k for incoming TUPEd staff, the length of the pay freeze is likely to make staff look elsewhere rather than accept the TUPE. Early days, just trying to learn about a process I've not been through before.

Yes, 

Yes. The point of TUPE is that you transfer on your existing T&Cs so if the transferred staff didn't have a contractual right to a cost of living pay rise then they have no right to one. You are free to agree to Tx to the new employers T&Cs if you wish to - generally pay rises are withheld from transferees to encourage them to agree, typically at the expenses of better T&Cs they had before (eg holiday, pension, sick leave etc)

No. If you decline to transfer to the new employer then you are deemed to have resigned

Thanks for that. So, if the contract of transferring staff does specify an annual cost of living rise, how can they be transferred on current salary with a future pay freeze?

AIUI They can't be. Is that what has happened? 

Does their existing contract say they must have an annual CoL rise of X% or is it discretionary? (I've never seen the former - only that there must an an annual review which could decide the annual increase is zero)

Have they agreed to transfer to the public sector T&Cs? So gained a Public Sector pension etc but are subject to mark-time until departmental pay catches up

Did TUPE actually apply or are they one of the classes of worker to whom it doesn't apply because of they way they were contracted by the previous employer

Is it a cost of living rise they're not getting or a pay progression increase?

I've just been able to locate the specific contract related to this query and it does not state anything about a guaranteed annual cost of living increase, although the staff potentially impacted by the communicated TUPE transfer have had an annual cost of living pay rise since 2015, and probably for much longer. However I acknowledge that as this is not written into the contract, there are no guarantees going forward. I know for a fact that if my pay were to be frozen for around 4-5 years after a TUPE I would have found another job within 12-18 months, or more likely retired well before the transfer. It's early days and no details of the transfer process have been published, or are likely to be for quite a few months. People are quite understandably curious as to how a process that they haven't been through before, and in the opposite direction to most TUPEs, will pan out. Especially curious about the likelihood of being offered a CS redundancy due to the recipient organisation taking on so many staff at a much higher wage (25%-30%) than the existing staff, and being unable to pay those wages. If a CS redundancy looks very unlikely I would wager on the majority of staff retiring as they are mostly 55+ 

Andy_L

pensionpawn said:

Andy_L said:

pensionpawn said:

Andy_L said:

pensionpawn said:

So you can be TUPE'd from the private sector to the public sector? I can't see that mentioned in the ACAS guidance. It is also legal to withhold a cost of living pay rise to staff recently TUPE'd across whilst existing staff see their salaries rise? If a company's contract with a government department comes to an end is there an option to decline TUPE and elect for statutory redundancy pay? If a pay freeze for recently TUPEd staff is possible, with a difference in salaries of £36k in the public sector compared to £44k for incoming TUPEd staff, the length of the pay freeze is likely to make staff look elsewhere rather than accept the TUPE. Early days, just trying to learn about a process I've not been through before.

Yes, 

Yes. The point of TUPE is that you transfer on your existing T&Cs so if the transferred staff didn't have a contractual right to a cost of living pay rise then they have no right to one. You are free to agree to Tx to the new employers T&Cs if you wish to - generally pay rises are withheld from transferees to encourage them to agree, typically at the expenses of better T&Cs they had before (eg holiday, pension, sick leave etc)

No. If you decline to transfer to the new employer then you are deemed to have resigned

Thanks for that. So, if the contract of transferring staff does specify an annual cost of living rise, how can they be transferred on current salary with a future pay freeze?

AIUI They can't be. Is that what has happened? 

Does their existing contract say they must have an annual CoL rise of X% or is it discretionary? (I've never seen the former - only that there must an an annual review which could decide the annual increase is zero)

Have they agreed to transfer to the public sector T&Cs? So gained a Public Sector pension etc but are subject to mark-time until departmental pay catches up

Did TUPE actually apply or are they one of the classes of worker to whom it doesn't apply because of they way they were contracted by the previous employer

Is it a cost of living rise they're not getting or a pay progression increase?

I've just been able to locate the specific contract related to this query and it does not state anything about a guaranteed annual cost of living increase, although the staff potentially impacted by the communicated TUPE transfer have had an annual cost of living pay rise since 2015, and probably for much longer. However I acknowledge that as this is not written into the contract, there are no guarantees going forward. I know for a fact that if my pay were to be frozen for around 4-5 years after a TUPE I would have found another job within 12-18 months, or more likely retired well before the transfer. It's early days and no details of the transfer process have been published, or are likely to be for quite a few months. People are quite understandably curious as to how a process that they haven't been through before, and in the opposite direction to most TUPEs, will pan out. Especially curious about the likelihood of being offered a CS redundancy due to the recipient organisation taking on so many staff at a much higher wage (25%-30%) than the existing staff, and being unable to pay those wages. If a CS redundancy looks very unlikely I would wager on the majority of staff retiring as they are mostly 55+ 

Slim
If "my pay were to be frozen for around 4-5 years after a TUPE I would have found another job within 12-18 months" or "I would wager on the majority of staff retiring as they are mostly 55+ " why would they need to offer a redundancy package rather than let natural wastage achieve the same result?

Don't forget that the incomers will not have CS redundancy terms but whatever is specified in their original contact

pensionpawn

Andy_L said:

pensionpawn said:

Andy_L said:

pensionpawn said:

Andy_L said:

pensionpawn said:

So you can be TUPE'd from the private sector to the public sector? I can't see that mentioned in the ACAS guidance. It is also legal to withhold a cost of living pay rise to staff recently TUPE'd across whilst existing staff see their salaries rise? If a company's contract with a government department comes to an end is there an option to decline TUPE and elect for statutory redundancy pay? If a pay freeze for recently TUPEd staff is possible, with a difference in salaries of £36k in the public sector compared to £44k for incoming TUPEd staff, the length of the pay freeze is likely to make staff look elsewhere rather than accept the TUPE. Early days, just trying to learn about a process I've not been through before.

Yes, 

Yes. The point of TUPE is that you transfer on your existing T&Cs so if the transferred staff didn't have a contractual right to a cost of living pay rise then they have no right to one. You are free to agree to Tx to the new employers T&Cs if you wish to - generally pay rises are withheld from transferees to encourage them to agree, typically at the expenses of better T&Cs they had before (eg holiday, pension, sick leave etc)

No. If you decline to transfer to the new employer then you are deemed to have resigned

Thanks for that. So, if the contract of transferring staff does specify an annual cost of living rise, how can they be transferred on current salary with a future pay freeze?

AIUI They can't be. Is that what has happened? 

Does their existing contract say they must have an annual CoL rise of X% or is it discretionary? (I've never seen the former - only that there must an an annual review which could decide the annual increase is zero)

Have they agreed to transfer to the public sector T&Cs? So gained a Public Sector pension etc but are subject to mark-time until departmental pay catches up

Did TUPE actually apply or are they one of the classes of worker to whom it doesn't apply because of they way they were contracted by the previous employer

Is it a cost of living rise they're not getting or a pay progression increase?

I've just been able to locate the specific contract related to this query and it does not state anything about a guaranteed annual cost of living increase, although the staff potentially impacted by the communicated TUPE transfer have had an annual cost of living pay rise since 2015, and probably for much longer. However I acknowledge that as this is not written into the contract, there are no guarantees going forward. I know for a fact that if my pay were to be frozen for around 4-5 years after a TUPE I would have found another job within 12-18 months, or more likely retired well before the transfer. It's early days and no details of the transfer process have been published, or are likely to be for quite a few months. People are quite understandably curious as to how a process that they haven't been through before, and in the opposite direction to most TUPEs, will pan out. Especially curious about the likelihood of being offered a CS redundancy due to the recipient organisation taking on so many staff at a much higher wage (25%-30%) than the existing staff, and being unable to pay those wages. If a CS redundancy looks very unlikely I would wager on the majority of staff retiring as they are mostly 55+ 

Slim
If "my pay were to be frozen for around 4-5 years after a TUPE I would have found another job within 12-18 months" or "I would wager on the majority of staff retiring as they are mostly 55+ " why would they need to offer a redundancy package rather than let natural wastage achieve the same result?

Don't forget that the incomers will not have CS redundancy terms but whatever is specified in their original contact

That's a fair point. No redundancy terms are specified in the existing contract, so that will mean statutory. Could mean that many don't take up the TUPE offer, impacting productivity from day one!