EMPLOYEE TRANSFERS FROM SENDER TO RECEIVER ORGANISATIONS April 1 st 2013

1. EMPLOYEE TRANSFERS FROM SENDER TO RECEIVER ORGANISATIONSApril 1st 2013 Presented by Kate Calder Interim Head of People Services GMCSU Representative Jan Hornby People Services Lead CSU Mary Rudkin Transition HRBP Parveen Anwar Transition HRBP

2. The transfer of a business is a complex matter and there are laws in place which are designed to ensure that the process is undertaken fairly. TUPE is a piece of employment legislation that protects employees’ employment rights in the event that a business or part of a business in which they work is taken over or transferred to another organisation – prohibits dismissals in connection with a transfer. The application of TUPE is a matter of law and parties cannot agree not to apply TUPE. A transfer from one organisation to another organisation may not technically be a TUPE transfer but the Cabinet Office Statement of Practice (COSOP) effectively imposes TUPE in most NHS transfer situations. The Transfer of Undertakings (Protection of Employment) Regulations 2006 TUPE

3. To be informed and consulted on the transfer and any proposed measures (changes to employment terms and conditions) Continuity of employment retained - an employee’s contract (which is in place immediately prior to the transfer) will automatically transfer to the new employer on the date of transfer. This means that contracts will be treated as if it had been originally made with the new organisation. What are my rights as an employee under TUPE?

4. What are my rights as an employee under TUPE? • Protection of continuous service - this is important to protect statutory rights such as a right to claim a redundancy payment and unfair dismissal. • Preserved terms and conditions of employment after transfer - all contractual terms and conditions are protected as at the date of the transfer, and will be treated the same after the transfer, as before: • All national terms under Agenda for Change such as maternity leave, sickness scheme, annual leave. • All local terms and conditions including special leave, redeployment etc.

5. Variation to Terms & Conditions Variation to terms and conditions can only be done lawfully if the new employer can show that it was for an economic, technical or organisational reason unconnected with the transfer or due to a statutory change –these changes are referred to as “measures”. “Measures” (i.e. what an employer has to consult about) have been deemed to mean any action, step or arrangement, for example, new systems of work, new working hours or new working arrangements. However, following the transfer on 01/04/13, if an employee voluntarily changes their post, for example, by an increase or decrease of hours or they take a promotion, this will probably lead to a change of contract. Receiver organisations will need to identify a strategy for issuing new contracts in line with the terms and conditions of the new organisation.

6. Variation to Terms & Conditions Discretionarybenefits are not protected by TUPE and therefore may not continue post transfer, examples of these may include: Health Time and Flexi Time. Pay dates may change depending on new employer arrangements.

7. Do I have to transfer to the new employer? No, employees have the right to object to being transferred and cannot be transferred against their will. However, employees need to be aware that if they decline the transfer, this would not amount to a dismissal. The employee would be treated as if they had effectively resigned from their post and they would not be entitled to a redundancy payment.

8. Do I have to transfer to the new employer? If an employee believes either of the following applies to their situation then they should make this clear at the time of objection and their case will be considered: • That the transfer would amount to a substantial change in their employment situation that causes a material detriment to their personal circumstances • That their post has been incorrectly designated for transfer If an employee does not state one of the above reasons then their objection will be treated as notification that they do not wish to transfer and their employment will cease on the date of transfer.

9. The process of transferring employees to receiving organisations on 1st April 2013 has begun and is being carried out in partnership with sender organisations, receiver organisations, Trade Unions and employees. Employee transfers will be effected in accordance with the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) or a Transfer Scheme/Order covered by the Cabinet Office Statement of Practice, January 2000 (Revised November 2007) (COSOP). COSOP ensures that employees will be treated no less favourably than if TUPE applied in relation to protecting continuity of employment and transferring on current terms and conditions. Process

10. Process Both sender and receiver organisations have legal requirements to fulfil in the transfer of employees to the new organisations on 1st April 2013. The process that will be followed to ensure these are met is summarised below: • Sender organisations identify employees for transfer including employees who have secured roles in receiver organisations via Lift & Shift, Lift & Flip and hosted arrangements. Employees who have a transfer right but who have not secured a role in a receiver organisation will be included

11. Process • Staff transfer information is regularly being updated by the Central Transition Team in order for the Department of Health to be able to populate Staff Transfer Schemes. • On 15/03/13 updated Staff Transfer Scheme staff lists will be sent to sender organisation managers to check and confirm. These must be returned to the HR Central Transition Team with any amendments made by 18/03/13. • The Staff Transfer Scheme staff list will then be confirmed by the GM Executive Management Team, signed off by the GM Board by 27/03/13 and then sent to the receiver organisations.

12. Process • The Department of Health will sign off the Staff Transfer Schemes on behalf of the Secretary of State by 31/03/13. • Sender organisations provide details to receiver organisations of their contractual and non contractual terms and conditions of employment for those employees transferring in order for receivers to identify any proposed measures (changes). • Sender organisations request proposed measures from receiver organisations – to be returned no later than 06/02/13. • Letters will be sent to Full Time Trade Union Officers and the Chair of the NHSGM Staff Side formally notifying them of the commencement of consultation on transfer along with a list of all employees proposed for transfer. Consultation on measures will commence no later than 07/02/13 and end by 28/02/13.

13. Process • Sender and receiver organisations will inform and consult with appropriate representatives of employees who might be affected by the proposed transfer on any proposed measures. This will include those employees with a right to transfer but with no role identified in a receiver organisation to transfer to. • Claims for failure to consult may be lodged with an Employment Tribunal and if upheld would lead to the relevant employer being liable for up to 13 weeks pay for each employee affected. • Sender organisations provide due diligence data (e.g. name and home address of employees) and employee personal files to receiving organisations two weeks prior to transfer. For this purpose, employee records have been subject to data cleanse and audit and all records have been accounted for.

14. Process • Sender organisations provide each employee who is in scope to transfer with a letter of final confirmation of the transfer setting out the detailed terms of the transfer, the support package that is available and the objection / appeal process. This letter will also include details relevant to the personal position of an employee, e.g. if they work part time, details of any relocation, pay protection. • Receiver organisations will send a welcome letter to transferring employees confirming the outcome of consultation and agreed measures. This letter may also request sensitive personal data from employees (e.g. bank details) to enable the receiver organisation to set up employees on the payroll.

15. Proposed Measures….. • Pay date – proposed to be 27th day of each month or Friday before if 27th day falls at a weekend • Location – St James’s House in Salford; hot desk mobile working for some employees, CCG locations across Greater Manchester • Job titles and reporting arrangements of employees transferring into the CSU will change on transfer as already identified and notified through the Greater Manchester/national pooling, matching and recruitment process

16. Proposed Measures • Structures to be reviewed for Functions Lifting and Flipping or Lifting and Shifting post April 2013 • If you do have a right to transfer under TUPE but have not yet secured a role within GMCSU– you will be invited to a 1 to 1 meeting to explore and explain what this means for you

17. Proposed Measures • Whilst employees will transfer across with current contractual terms & conditions (other than those mentioned previously) a review post 1st April 2013 will take place on salary sacrifice schemes starting with lease cars, childcare vouchers, cycle schemes, and ‘health time’ • Other areas-as these are identified they will be communicated via Staff Partnership forums

18. ……..and Finally • We are in the process of setting up formal staff partnership arrangements • You can get involved in shaping your organisation via Jigsaw • If you are not starting in your role until the 1st April make sure you read CSU matters to keep you ‘up to date’ and informed • And remember we have the communications mailbox for any of your questions –info.gmcsu@nhs.net