TUPE Procurement Guidance

Introduction

TUPE

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (as amended) (TUPE), protects employees’ rights when the organisation for which they work, or the service they contribute to the delivery of, transfers to a new employer. It applies to organisations of all sizes, both public and private sector. More specifically, TUPE applies where:

a business or undertaking, or part of one, is transferred to a new employer where it retains its identity post-transfer; or

there is a service provision change involving (a) the initial outsourcing of a service (known as “contracting out”), or (b) a subsequent transfer (second stage contracting) (where a service is “reassigned”), or (c) a service being brought back in-house (where a service is “contracted in” or “insourced”).

In the context of a TUPE transfer, the employer who is transferring the business or service to another is called “the transferor”. The employer who receives the transferred business or service is called “the transferee”.

In order for a service provision change to amount to a TUPE transfer, the following three conditions must be satisfied:

1. there must be an organised grouping of employees situated in Great Britain whose principal purpose is to carry out the activities concerned on behalf of their employer or a particular client. There must be an element of conscious organisation by the employer of the employees into a grouping or team, which has as its principal purpose the carrying out of the relevant activities and it must be organised by reference to the requirements of the employer or client in question;

2. the employer or client (as the case may be) must intend that the activities will, after the change, be carried out by the transferee other than in connection with a single specific event or task of short-term duration; and

3. the activities must not consist wholly or mainly of the supply of goods for the employer/client’s use.

In the context of a service provision change, it can sometimes be difficult to determine whether an employee should transfer, in circumstances where they may be employed not only in the performance of the services that are transferring but also in other parts of the

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business that are not transferring. In that set of circumstances, a decision has to be made as to where the employee in question predominantly worked. This is done by assessing the facts of each case, but in particular, attention is given to the following:

the percentage amount of time spent on one part of the business or the other;

the amount of value given to each part by the employee;

the terms of any contract of employment or job description; and

how the cost to the employer of the employee’s services is allocated between the different parts of the business.

The employee will transfer under the service provision change if it can be said that they were part of the organised grouping and predominantly worked on the services that are being transferred. If the services that the employee works on are too fragmented, TUPE will not apply in relation to that particular employee. TUPE has implications for both the transferor and the transferee. TUPE transfers all of the transferor's rights, powers, duties and liabilities under or in connection with the employment contracts of transferring employees to the transferee. Further, any act or omission of the transferor before the transfer is deemed to have been an act or omission of or in relation to the transferee. This means that if a transferor discriminates against an employee who is due to transfer, then potentially any claim arising from that passes to the transferee on transfer. In the same way, if the transferor owes wages to a transferring employee at the time of the transfer, that employee can claim those owed wages from the transferee. As well as protecting transferring employees’ terms and conditions of employment, TUPE preserves their continuity of employment. Any collective agreements in place before the date of the transfer will also apply post-transfer.

In 2014, new Regulations on TUPE came into effect updating the 2006 Regulations. As part of these changes, it will continue to be the case that changes to employees’ terms and conditions, if the sole or principal reason is the transfer, will be void. Previously, changes to terms and conditions for a reason ‘connected to the transfer’ were also invalid, but this has now been removed. However, changes may be valid only in very specific circumstances.

Rights and liabilities relating to the provision of occupational pension schemes which relate to benefits for old age, invalidity or survivors generally do not transfer under TUPE. A transferring employee cannot claim against the transferor for breach of contract or constructive unfair dismissal arising out of a loss or reduction in their rights under an occupational scheme in consequence of the transfer. However, with transfers not involving central or local government (where potentially different pension considerations apply), transferees must offer, as a condition of employment, a “minimum level of pension protection” under TUPE to qualifying employees (any transferring employees who had an actual or contingent right (i.e. was an active member, eligible to be a member or was in a waiting period before becoming eligible to be a member) in relation to an occupational

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pension scheme with employer contributions immediately prior to the TUPE transfer). Transferees must offer such qualifying employees either:

1. membership of a defined benefit (i.e. final salary) occupational pension scheme, in relation to which the transferee is the employer, which provides for either the value of the benefits to be provided to the member to equal at least 6% of their pensionable pay per year of employment, in addition to any member contributions, and where the member is required to make contributions, for them to contribute at a rate not exceeding 6% of their pensionable pay; or the transferee must match member contributions to the scheme up to a maximum of 6% of basic pay;

2. membership of a money purchase occupational pension scheme, in relation to which the transferee is the employer, to which the employer must match member contributions up to a maximum of 6% of basic pay; or

3. to match member contributions up to 6% of basic pay to a stakeholder pension scheme of which the employee is, or is eligible to become, a member.

If the TUPE transfer involves the transfer of current or former employees of local or central government and some other public bodies, guidance should be sought from HR. In this respect, you will need to have regard to HM Treasury’s Fair Deal policy, which is a non-statutory policy and sets out how pension issues are dealt with when staff are compulsorily transferred from the public sector to independent providers delivering public services. Regard should also be had to a Cabinet Office Statement of Practice – “Staff Transfers in the Public Sector”. Please be aware, that some pension schemes provide for age-related benefits (for example, enhanced redundancy entitlement or early retirement benefits, or the right to be considered for early retirement). These benefits will transfer to a transferee as they fall outside of the pension rights exclusion from TUPE (above). These rights are commonly referred to as “Beckmann rights” following a case that dealt with this point. These rights can often be very expensive and transferees will need to ensure that they are aware of such matters when undertaking any due diligence before a TUPE transfer.

It is not possible to contract out of TUPE (indeed, to do so will be null and void), but the commercial risks and liabilities relating to a transfer can, and should, be managed.

In a TUPE situation there are various information and consultation obligations on both the transferor and the transferee in respect of any employees affected by a transfer. It is important that this is understood as this will assist you in determining the type of information you may need to find out as well as helping you to understand some of the standard documents included with this guidance. Briefly:

1. The Transferor must at least 28 days before any transfer send to the Transferee in writing “employee liability information” in relation to those employees it has identified are in scope to transfer to the transferee on the transfer date. That information must include the following:

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(a) the identity and age of the employees;

(b) information contained within the statutory written statement of terms and conditions of employment (essentially the terms of their contracts of employment);

(c) information relating to any disciplinary action taken against an employee within the previous 2 years;

(d) information relating to any grievances raised by an employee within the previous 2 years;

(e) information about any legal action brought by an employee against the transferor within the previous 2 years and any potential legal action which the transferor has reasonable grounds to believe may be brought by an employee;

(f) information relating to any collective agreement which will have effect after the transfer; and

(g) information about anyone who would have been employed by the transferor and would have been in-scope to transfer to the transferee if they had not been unfairly dismissed.

2. The Transferee shall notify the Transferor of any measures it intends implementing in relation to the transferring employees after the transfer date. Those measures can include any changes to roles, terms and conditions (if permitted), redundancies, reorganisations etc.

3. Long enough before the transfer date, the transferor must then write to the appropriate representatives of the affected employees. The “appropriate representatives” will be any recognised trade union, or any body of employee representatives elected by the affected employees to represent them in relation to, amongst other things, TUPE. If there are not appropriate representatives, then the Transferor must first write to the affected employees inviting them to elect representatives for the purposes of consulting with them regarding the TUPE transfer. If the affected employees do not elect such representatives, the transferor may proceed to consult directly with the affected employees. The written information that must be provided to the appropriate representatives/affected employees will be:

(a) the fact that a transfer is to take place, the date or proposed date of the transfer, and the reason for the transfer;

(b) the legal, economic and social implications of the transfer for any affected employees. This might include an explanation of the legal effect in relation to the employment contracts, collective agreements and statutory rights, the impact on pay and benefits, and any relocation plans;

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(c) information on the number of agency workers engaged, the areas in which they are being used and the type of work carried out by them;

(d) If the employer is the transferor, and it envisages taking any measures in connection with the transfer, it must give information and consult on those measures or if there are none, it must confirm that fact;(e) If the employer is the transferee, it must indicate any measures it proposes to take on or after the transfer date, or if none confirm that fact.

It is important to comply with all of the above properly as there are potentially serious financial repercussions if there is a failure to do so. The above should also enable you to understand some of the questions that might need to be considered during any TUPE procurement process and why they are being asked.

Procurement

It is important that those who tender to deliver a service are fully aware of any associated TUPE employment liability to allow them to factor this into their bid/pricing. If this information is not fully and accurately disclosed then this may result in tenders that take insufficient account of costs, which might in certain circumstances result in the University being liable for additional costs post contract award.

Pre-Procurement Stage

It is important to consider whether the re-tender of any existing contracts will have any TUPE implications. Using the University’s Contracts Register, Category Managers (contact details provided below) should prompt departments to make such a determination at least 12 months ahead of the expiry of the contract, if this is possible. If this is not possible, then you should seek as much information as you can in order to assist you with dealing with the procurement process. If it is not clear as to whether the re-tendering of an expiring contract has any TUPE implications then, as part of the contract management process, the University should write to the provider to help clarify – see sample letter at Appendix A – please note, this is a sample letter only and the type of letter that you will send will vary dependant on the information you require in order to make a decision as to whether TUPE applies or not – the sample letter should therefore only be used as a guide. Human Resources (contact details provided below) should be engaged at the earliest opportunity where it is understood that a tender / re-tender has any potential TUPE implications.

The full Procurement Strategy template prompts consideration of any TUPE implications. In identifying all University staff involved in the procurement exercise/project, including those on the tender evaluation panel, the requirement for any HR expertise should be established.

At the pre-procurement stage, where the procurement strategy is being developed, the following details should be established and information collated:

• Anonymised Lists of employees potentially affected by the transfer (i.e. all those who carry out the services or who are part of the business or undertaking that is

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going to be transferred or who are otherwise affected by it), and the names and contact details of relevant union officials or employee representatives

• Precisely what is being transferred / contracted-out• Who will be transferring the service (the transferor)• Which employees will likely be employed by the transferor in the service

immediately before it is transferred (or, where the transfer is effected by a series of two or more transactions, employees who immediately before the transfer are employed by the transferor and assigned to the organised grouping of resources or employees). If employees work in a number of areas, obtain evidence to establish whether they are predominantly employed in the service that is to transfer.

• All affected employees — any employees of the transferor or transferee (whether or not employed in the undertaking or the part of the undertaking to be transferred) who may be affected by the transfer or may be affected by measures taken in connection with it

• Any independent trade unions that are recognised by the transferor/transferee in respect of the affected employees

• Any existing employee representatives elected by the affected employees whose remit gives them sufficient authority to act as 'appropriate representatives' or any employee representatives elected specifically for the purposes of consultation and receiving information

• If known at this point, any measures we envisage taking in connection with the transfer in relation to the affected employees and the likely effect of such measures. Measures include plans or proposals that we foresee, and have in mind to implement, including any material change in existing work practice or working conditions or redundancies (whether voluntary or compulsory). If these are not known at this stage then information should be given as soon as firm details are established and can be communicated in a meaningful way.

• The pension schemes that any employees are in together with contact details of the relevant pension administrators.

• Details of any outstanding disciplinary or grievance issues or any employee claims

Second stage contracting

Where the University is to invite tenders for a service that is already being delivered by an external provider, it will need to obtain and disclose to potential tenderers the current provider’s Provisional Staff List. The required content of the Provisional Staff List is shown at Appendix C. This is an anonymised list of all of the provider’s employees (exit employees) that would potentially be subject to a TUPE transfer should a new provider be appointed – see Appendix C.

A Provisional Staff List of identified exit employees should be obtained from the provider 6-12 months prior to the expiry date of the contract (whether the initial or extended contract period). The University should write to the provider to gain this list - see sample letter at Appendix B. The provider should respond within 20 days of the request being made, as

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stipulated in the University’s standard Terms & Conditions (Appendix D). This list should be reviewed regularly and updated where there are any changes.

If the University gives notice to the provider of early termination in accordance with the terms and conditions of the contract, then the Provisional Staff List of identified exit employees must be requested at the same time as issuing the termination notice, and the provider should be requested to respond within 20 days of the request being made, as stipulated in the University’s standard Terms & Conditions (Appendix D).

Following the completion of the tendering process, if the contract is awarded to a new provider then formal notification with full due diligence information for the employees to be transferred must be provided by the outgoing contractor to a new provider 28 days before the transfer takes place, as stipulated in the University’s standard Terms & Conditions (Appendix D) and TUPE (known as “Employee Liability Information” – see above). This is the Final Staff List, and its required content is shown at Appendix C.

Initial outsourcing

Where the University is to undertake a tendering process to appoint an external provider to deliver a service which is currently delivered in-house, this may result in University employees being transferred to the external provider under the TUPE Regulations. The University will need to formulate, and disclose to potential tenderers, the Provisional Staff List. It will also be responsible for producing the Final Staff List to be issued to the new provider. The University will be obliged to send to any transferee, in these circumstances, the Employee Liability Information in accordance with TUPE (see above) no later than 28 days before the date of the transfer. It will also need to abide by the inform and consult obligations as set out in this guidance.

The University Standard Terms & Conditions (Appendix D) seeks to cover the position in the event that the initial purchase of the services from a contractor amounts in itself to a service provision change pursuant to the TUPE Regulations. Of course, if it does not then that part of the Standard Terms & Conditions will not apply to the initial purchase of services, although TUPE may well be relevant if the University at a later date seeks to take back the services in-house or to contract with another contractor for the provision of such services.

Procurement Process

Pre-Qualification / Selection Stage

The purpose of the Selection Stage is to assess the technical ability and financial standing of applicants / tenderers against pre-determined criteria. Where the contract being tendered has TUPE implications, it may be that selection questions are asked, and scored, relating to the applicant’s/tenderer’s experience in managing TUPE transfers.

Where a Restricted (Two Stage) Procedure is being employed, it is important that any TUPE implications are highlighted in the Selection Questionnaire.

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Tender / Award Stage

The Provisional Staff List should be included in the Invitation to Tender (ITT), to allow tenderers to factor the TUPE transfer into the bid (pricing and planning).

If a current provider has not provided the Provisional Staff List in time for it to be included in the ITT document, then the following instruction should be included in the ITT:

As part of the tender response, Tenderers must provide a capped price in respect of TUPE which will be subject to rationalisation based on the final TUPE employee liability information. For the avoidance of doubt the aforementioned price cap provided by Tenderers shall be a ceiling figure and no price increases will be accepted by the University.

Contract Conditions

The University operates standard Terms & Conditions (see Appendix D) which it uses as it’s starting point in any re-tendering of any contract for services. However, it is important to realise that it is not always possible to have a standard set of terms and conditions for each TUPE situation and Appendix D may have to be changed or adapted to take into account different circumstances and facts dependent on the type of services that might transfer. HR and legal assistance should be used when formulating any contracts to deal with such matters.

Within the standard Terms & Conditions (Appendix D), the timescales to which the provider must adhere in forwarding the Provisional and Final Staff Lists to the University are also included.

Where it is agreed that alternative Terms & Conditions are to be used to the University’s standard set, it is important that the TUPE provisions of the University’s standard TUPE clauses are included in the alterative Terms & Conditions, where relevant. The appropriate Category Manager (contact details provided below) must be contacted when drafting such a clause and the Director of Human Resources must be consulted.

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Useful Contacts

Name Position Contact DetailsProcurement Team

Rob Cross Category Manager - Estates, Domestic and Furniture

E: R.M.Cross@lboro.ac.ukT: 01509 222015

Leighann Carlton Category Specialist - Estates, Domestic and Furniture

E: L.Carlton@lboro.ac.ukT: 01509 228038

Cliff Summerskill Category Manager - IT & Telecoms, AV, Library, Professional Services, Postal Services and Travel & Accommodation

E:C.Summerskill@lboro.ac.ukT: 01509 228186

Krishna Radia Category Specialist - IT & Telecoms, AV, Library, Professional Services, Postal Services and Travel & Accommodation

E: K.Radia@lboro.ac.ukT: 01509 223627

Ian Williamson Category Manager - Laboratory & Medical, Catering, Office Supplies and Miscellaneous

E: I.Williamson@lboro.ac.ukT: 01509 228359

Debbie Tyler Category Specialist - Laboratory & Medical, Catering, Office Supplies and Miscellaneous

E: D.A.Tyler@lboro.ac.ukT: 01509 223625

Human ResourcesAnne Lamb Deputy Director E: A.E.P.Lamb@lboro.ac.uk

T: 01509 222168

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Appendix A – Letter to clarify whether any potential TUPE implications (The Procurement Team also holds a TUPE Due Diligence Questionnaire that can also be issued to the supplier for completion to help establish any TUPE implications. This letter should be copied to the Director of HR)

[Date]

[NameAddress 1Address 2 TownCountyPostcode]

Dear [Account Manager]

Re: Contract for the provision of [XXXXXXXXXX] – TUPE Regulations and requirements

The Loughborough University contract for the provision of [XXXXXXXXXX] will expire with [Provider Name] on [Contract Expiry Date] and will need to be re-tendered so as to appoint the provider for the new contract, in accordance with the University’s Procurement Rules.

The Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE Regulations”) state that if a contract for services or supplies is awarded or transferred to a new provider then on the date of the transfer all those staff who are wholly or mainly employed in the transferring undertaking or service will transfer to the new employer with all of their rights and liabilities (save in relation to occupational pension schemes).

We have identified the provision of [XXXXXXXXXX] to be a service, which, if it was transferred to a different provider, could potentially be subject to TUPE Regulations.

Therefore, in the first instance, please advise by return, if in your view there are staff wholly or mainly employed by [Provider Name] to deliver the contract for the provision [XXXXXXXXXX] to the University, who might be subject to the TUPE Regulations in the event of a transfer. At this stage it is only necessary to identify if you feel that TUPE is relevant and if so the number of employees involved.

If TUPE is a factor to consider for the next contract, we will write to you again requesting more detailed information.

Could you please respond no later than [Deadline Date]?

Yours faithfully

[Name][Position]

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Appendix B – Letter requesting Provisional Staff List (This letter should be copied to the Director of HR)

[Date]

[NameAddress 1Address 2 TownCountyPostcode]

Dear [Account Manager]

Re: Contract for the provision of [XXXXXXXXXX] – TUPE Regulations and requirements

As you are aware, the contract for the provision of [XXXXXXXXXX] terminates on [Contract Expiry Date] and the University is preparing tender documents for completing the new contract, which is anticipated to begin on [New Contract Start Date/ Transfer Date].

It is [possible] that the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE Regulations) will apply to the re-tendering of the contract. Therefore, if the contract is awarded to a new provider, the contracts of employment of those of your employees who are essentially dedicated to the contract may potentially transfer to the new service provider, who will inherit all rights, duties and liabilities in relation to them (save in relation to occupational pension schemes). The TUPE Regulations require employers to provide certain employee liability information to the new employer no later than 28 days before the Transfer Date. In order to assist you with this obligation, and to ensure that all bidders for this contract can properly assess their potential employment liabilities and indicate their plans for the transferring employees, we routinely supply this information (in anonymised format) to bidders during the tendering process. If TUPE applies to this re-tender and a new provider wins the contract, we will expect you to provide to the new provider updated employee due diligence information (including transferring employees' identities) no less than one month before the Transfer Date, and preferably before this date to ensure the smooth transfer of the services. Your failure to provide this information (within the required time frame) may expose you to an employment tribunal award of at least £500 for each employee about whom information has not been provided. It may also mean that you cannot discharge your obligation under the TUPE Regulations to inform and consult your workforce about the new provider's plans for the employees. This failure could expose you to an additional liability of up to 13 weeks pay per employee.

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You will also be aware that you are contractually required by clause [No.] of the contract to provide us with provisional employment information in addition to the employee liability information as and when requested. I would be grateful therefore, if you would complete the attached TUPE information spreadsheet.

In addition to the workforce information, clarification of the following related employee liability information should be provided:

a) Are the staff included in the workforce information solely employed on the work covered by the above contract?

You may wish to take legal advice as to which staff you include. You may find that staff spend less than 100% of their time on work covered by this contract. General legal commentary indicates that providers of the information should include only those staff who are assigned to the group of staff responsible for the services under the contract (and whose principal purpose is to undertake the work covered by this contract for the University). I would ask you to indicate in the “% Involvement” column if you are including any staff who spend less than 60% of their time on this contract and the reasons for this.

b) Explain how the proportion of time has been calculated and what information was used in reaching this figure?

c) Where an employee spends less than 100% of their time undertaking the services under the contract, please indicate why this is the case and what other areas of your business the employee works?

d) If there are any assets to be included could you please identify the assets and the basis upon which assets are to be transferred.

e) The names of the Trade Unions representing the staff, if relevant.

f) Are any of the staff included on your list employed solely in a supervisory capacity? If this is the case, please identify these staff.

g) The terms and conditions of employment applicable to each member of staff included in the workforce information together with any applicable job descriptions. If further variations in terms and conditions have been agreed, please provide details of the variations (and the dates these occurred) as well as identifying the members of staff affected by any such variations.

h) Identification and relevant details of any collective arrangements, agreements or understandings with any Trade Union or Staff Association (including any such arrangement, agreement or understanding relating to recognition for the purpose of collective bargaining) and, if such arrangements are in writing, please provide a copy of the same.

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i) Identification of any member of staff included in the information who is currently on, or is likely to go on prior to the proposed transfer, maternity leave or other leave of absence who have a statutory or contractual right to return to work. Please also confirm if any members of staff are on long-term sickness absence and whether any have any entitlements to permanent health insurance or other income protection arrangements.

j) Copies of any disciplinary, grievance, redundancy or other employment procedures.

k) Details of any disciplinary or grievance cases in the last two years and the outcomes of these and/or confirmation as to whether any are outstanding.

l) Details of any legal claims or threatened legal claims made by any affected employees.

m) Are there any cases of existing or threatened industrial action or Trade Union dispute involving the staff? If yes, please provide details.

n) Are there any existing or threatened industrial injury or other occupational claims in respect of staff? If yes, please provide details.

o) Details of any threatened investigations relating to the staff by the Equality and Human Right Commission or other similar authority.

p) Details of the full pension terms applicable to staff participating in pension schemes.

Details of staff likely to be transferred should be identified by a reference number, not by their names, due to provisions under the Data Protection Act 1998. This information must be updated, to include the employees' identities, no less than 28 days before the Transfer Date (as part of the Employee Liability Information as required by the TUPE Regulations). We intend to make the anonymised general employee information available to bidders at the Invitation to Tender stage as part of the procurement process and will require bidders to enter into confidentiality agreements in advance of the disclosure.

Please return the completed form by no later than [Deadline Date]. If you have any questions please do not hesitate to contact [Procurer/Appropriate Category Manager].

Yours faithfully

[Name][Position]

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LOUGHBOROUGH UNIVERSITY

TRANSFER OF UNDERTAKINGS (PROTECTION OF EMPLOYMENT) REGULATIONS 2006INFORMATION SHEETCONTRACT: …………………………………………………

Employee Reference

Age (Years)

and date of birth

Weekly Cont. Hours

Weekly Wage / Salary

Continuous Service

(Years) and start date Job Title

Conditions of service which have cost implications, e.g. applicable redundancy policy, notice entitlement

benefits (including Beckmann liabilities) etc. Pension Scheme

Percentage involvement

with University contract

ABC

Unions recognised: ………………………………………

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Appendix C - Provisional Staff List and Final Staff List

The identity of employees must not be disclosed within the Provision Staff List. The information must be anonymised to ensure compliance with the Data Protection Act 1998.

The information initially gained within the Provisional Staff List at Stage 1 must be updated and confirmed as correct as at Stage 2, within the Final Staff due diligence List and as part of the Employee Liability Information required to be disclosed pursuant to TUPE (when the identity of the employees can be disclosed).

Information

Stage 1Provisional

List

Stage 2Final List

(Employee Liability

Information)

Job Title(Provided that the individual cannot be identified from this)

Work location Continuous service date Date employment started with existing employer Contractual weekly hours Regular overtime hours per week Salary or hourly rate of pay Payment interval (monthly/weekly) Bonus payments Pay review method Frequency of pay reviews Agreed pay increases Next pay review date Any existing or future commitment to training that has a time off or financial implication

Car allowance per annum Lease or company car details Any other allowances paid Any other benefits in kind Type of pension provision Current employer contribution rate Pension information: length of pensionable reckonable service Private health insurance Annual leave entitlement Bank holiday entitlement Mobility or flexibility clause in contract Contract end date (fixed term or temporary contract) Maternity or paternity leave (provided that the individual cannot be identified from this)

Sick leave entitlement Sick pay entitlement

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Information

Stage 1Provisional

List

Stage 2Final List

(Employee Liability

Information)

Notice period Employment status (employee, self-employed, agency worker) % of working time dedicated to the provision of services under the contract

Where relevant to an employee:Any collective agreements Information on any disciplinary proceedings relating to the employee within the last two years

Details of any grievances brought by an employee within the last two years

Information about any court or tribunal action taken against the employer by the employee within the previous two years

Information on any known or believed future action that the employee may take

Personnel or employee number Full name of employee National Insurance Number Whether currently absent from work due to long term sickness, maternity leave or career break

Age and date of birth Gender

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Appendix D – TUPE clause within the University’s Standard Terms & Conditions

19 Transfer of Undertakings (Protection of Employment) Regulations

19.1 In the event that the EMPLOYMENT REGULATIONS apply to any SERVICE TRANSFER the CONTRACTOR and the UNIVERSITY shall abide by this clause 19.

19.2 Transfer of UNIVERSITY TRANSFERRING EMPLOYEES to CONTRACTOR on the FIRST SERVICE TRANSFER DATE

19.2.1 This clause 19.2 applies in the event that the UNIVERSITY’S purchase of the SERVICES from the CONTRACTOR amounts to an outsourcing of an existing service currently undertaken by the UNIVERSITY and thereby amounts to a relevant transfer pursuant to the EMPLOYMENT REGULATIONS. In the event that the EMPLOYMENT REGULATIONS do not apply to the purchase by the UNIVERSITY of the SERVICES, then clause 19.2 shall not apply (but clauses 19.3 to 19.10 shall apply).

19.2.1 In the event that the EMPLOYMENT REGULATIONS do apply, the UNIVERSITY and the CONTRACTOR believe that, at the FIRST SERVICE TRANSFER DATE, the CONTRACTOR will become the employer of the UNIVERSITY TRANSFERRING EMPLOYEES pursuant to the EMPLOYMENT REGULATIONS.

19.2.3 The UNIVERSITY shall indemnify the CONTRACTOR in full for and against all claims, costs, expenses or liabilities whatsoever and howsoever arising incurred or suffered by the CONTRACTOR in relation to:

19.2.3.1 the termination by the UNIVERSITY of the employment of any of the UNIVERSITY TRANSFERRING EMPLOYEES prior to the FIRST SERVICE TRANSFER DATE;

19.2.3.2 anything done or omitted to be done by the UNIVERSITY in respect of any of the UNIVERSITY TRANSFERRING EMPLOYEES prior to the FIRST SERVICE TRANSFER DATE which is deemed to have been done by the CONTRACTOR by virtue of the EMPLOYMENT REGULATIONS

provided that such costs, claims, expenses and liabilities are not payable as a result of any act or omission of the CONTRACTOR (or any SUB CONTRACTOR).

19.2.4 All salaries and other emoluments including holiday pay, taxation and National Insurance contributions and contributions to retirement benefit schemes relating to the UNIVERSITY TRANSFERRING EMPLOYEES shall be bourne by the UNIVERSITY

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up to the FIRST SERVICE TRANSFER DATE and by the CONTRACTOR with effect from (and including) the FIRST SERVICE TRANSFER DATE.

19.2.5 The CONTRACTOR shall indemnify the UNIVERSITY in full for and against all claims, costs, expenses or liabilities whatsoever and howsoever arising, incurred or suffered by the UNIVERSITY including without limitation all legal expenses and other professional fees (together with any VAT thereon) in relation to:

19.2.5.1 any failure by the CONTRACTOR (or any SUB CONTRACTOR) to comply with its obligations to the UNIVERSITY TRANSFERRING EMPLOYEES including without limitation pursuant to the EMPLOYMENT REGULATIONS;

19.2.5.2 anything done or omitted to be done by the CONTRACTOR (or any SUB CONTRACTOR) in respect of any of the UNIVERSITY TRANSFERRING EMPLOYEES or any other employees of the UNIVERSITY whether before on or after the FIRST SERVICE TRANSFER DATE;

19.2.5.3 the employment and/or termination of employment of the UNIVERSITY TRANSFERRING EMPLOYEES on or after the FIRST SERVICE TRANSFER DATE;

19.2.5.4 any failure by the CONTRACTOR (or any SUB CONTRACTOR) to comply with its information and consultation obligations pursuant to regulations 13 and 14 of the EMPLOYMENT REGULATIONS in respect of the UNIVERSITY TRANSFERRING EMPLOYEES;

19.2.5.5 any objection by any or all of the UNIVERSITY TRANSFERRING EMPLOYEES pursuant to regulation 4(7) of the EMPLOYMENT REGULATIONS or any resignation by or deemed termination of any and all of the UNIVERSITY TRANSFERRING EMPLOYEES under regulation 4(9) of the EMPLOYMENT REGULATIONS as a result of the transfer of their employment to the CONTRACTOR (or any SUB CONTRACTOR) constituting a change in their working conditions or breach of their terms and conditions of employment and/or as a result of any proposal by the CONTRACTOR (or any SUB CONTRACTOR) not to honour or to vary the UNIVERSITY TRANSFERRING EMPLOYEES’ contracts of employment or working conditions.

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19.3 Employment Exit provisions

19.3.1 During the currency of this agreement the CONTRACTOR shall provide to the UNIVERSITY any information the UNIVERSITY may reasonably require relating to any individual employed, assigned or engaged in providing the SERVICES under this agreement (subject to the DATA PROTECTION LEGISLATION).

19.3.2 The CONTRACTOR agrees that, if so requested by the UNIVERSITY and/or any REPLACEMENT CONTRACTOR, subject to compliance with the DATA PROTECTION LEGISLATION:

within 20 days of the earliest of:

(a) receipt of a notification from the UNIVERSITY of a SERVICE TRANSFER or intended SERVICE TRANSFER;

(b) receipt of the giving of notice of early termination of the CONTRACT or any part thereof; or

(c) the date which is 12 months before the expiry of the CONTRACT (if an expiry date has been agreed between the parties)

and, in any event, on receipt of a written request of the UNIVERSITY at any time, it shall provide the CONTRACTOR’S PROVISIONAL STAFF LIST and the STAFFING INFORMATION to the UNIVERSITY or, at the direction of the UNIVERSITY, to a REPLACEMENT CONTRACTOR and it shall provide an updated CONTRACTOR’S’S PROVISIONAL STAFF LIST when reasonably requested by the UNIVERSITY or any REPLACEMENT CONTRACTOR;

19.3.3 at least 28 days before the SECOND SERVICE TRANSFER DATE, the CONTRACTOR shall prepare and provide to the UNIVERSITY and/or, at the direction of the UNIVERSITY, to the REPLACEMENT CONTRACTOR, the CONTRACTOR’S FINAL STAFF LIST, which shall be complete and accurate in all respects.

19.3.4 The UNIVERSITY shall be permitted to use and disclose the CONTRACTOR’S PROVISIONAL STAFF LIST, the CONTRACTOR’S FINAL STAFF LIST and the STAFFING INFORMATION for informing any tenderer or other prospective REPLACEMENT CONTRACTOR for any services which are substantially the same type of services (or any part thereof) as the SERVICES; and

19.3.5 on reasonable request by the UNIVERSITY the CONTRACTOR shall provide the UNIVERSITY or at the request of the UNIVERSITY, the REPLACEMENT CONTRACTOR, with access (on reasonable notice and during normal working hours) to such employment records (and provide copies) as the UNIVERSITY reasonably requests.

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19.4 The CONTRACTOR warrants that the CONTRACTOR’S PROVISIONAL STAFF LIST, the CONTRACTOR’S FINAL STAFF LIST and the STAFFING INFORMATION will be complete, true and accurate in all respects.

19.5 From the date of the earliest event referred to in clause the CONTRACTOR agrees that it shall not without the prior written consent of the UNIVERSITY, assign any person to the provision of the SERVICES (or the relevant part) which is the subject of a SERVICE TRANSFER who is not listed in the CONTRACTOR’S PROVISIONAL STAFF LIST and shall not without the prior written consent of the UNIVERSITY (such consent not to be unreasonably withheld or delayed):

19.5.1 increase the total number of employees listed on the CONTRACTOR’S PROVISIONAL STAFF LIST;

19.5.2 make, propose or permit any changes to the terms and conditions of employment of any employees listed on the CONTRACTOR’S PROVISIONAL STAFF LIST;

19.5.3 increase the proportion of working time spent on the SERVICES (or the relevant part) by any of the CONTRACTOR’S PERSONNEL;

19.5.4 introduce any new contractual or customary practice concerning the making of any lump sum payment on the termination of employment of any employees listed on the CONTRACTOR’S PROVISIONAL STAFF LIST; and/or

19.5.5 replace any of the CONTRACTOR’S PERSONNEL listed on the CONTRACTOR’S PROVISIONAL STAFF LIST or deploy any other person to perform the SERVICES (or the relevant part) or increase the number of employees or terminate or give notice to terminate the employment or contracts of any persons on the CONTRACTOR’S PROVISIONAL STAFF LIST.

19.6 The CONTRACTOR will promptly notify the UNIVERSITY or, at the direction of the UNIVERSITY, the REPLACEMENT CONTRACTOR of any notice to terminate employment received from any persons listed on the CONTRACTOR’S PROVISIONAL STAFF LIST regardless of when such notice takes effect.

19.7 The CONTRACTOR will, at its own expense, give (and ensure any SUB-CONTRACTOR gives) to the UNIVERSITY and/or any REPLACEMENT CONTRACTOR such assistance as it or they may reasonably require to contest any claim by any person employed by CONTRACTOR resulting from or in connection with the CONTRACT.

19.8 The CONTRACTOR shall perform and discharge all its obligations in respect of the CONTRACTOR’S TRANSFERRING EMPLOYEES and their representatives for its own account up to and including the SECOND SERVICE TRANSFER DATE. The CONTRACTOR shall indemnify the UNIVERSITY and any REPLACEMENT CONTRACTOR in full for and against all claims, costs, expenses or liabilities

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whatsoever and howsoever arising, incurred or suffered by the UNIVERSITY and/or any REPLACEMENT CONTRACTOR including without limitation all legal expenses and other professional fees (together with any VAT thereon) in relation to

19.8.1 the CONTRACTOR’S (or any SUB CONTRACTOR’S) failure to perform and discharge such obligation;

19.8.2 any act or omission by the CONTRACTOR (or any SUB CONTRACTOR) on or before the SECOND SERVICE TRANSFER DATE or any other matter, event or circumstance occurring on or before the SECOND SERVICE TRANSFER DATE;

19.8.3 the employment and/or termination of employment by the CONTRACTOR (or any SUB CONTRACTOR) of any of the CONTRACTOR’S TRANSFERRING EMPLOYEES on or before the SECOND SERVICE TRANSFER DATE;

19.8.4 all and any claims in respect of all emoluments and outgoings in relation to the CONTRACTOR’S TRANSFERRING EMPLOYEES (including without limitation all wages, bonuses, PAYE, National Insurance contributions, pension contributions, accrued holiday pay and otherwise) payable in respect of any period on or before the SECOND SERVICE TRANSFER DATE;

19.8.5 any claim arising out of, or proposal by the CONTRACTOR (or any SUB CONTRACTOR) to offer any change to any benefit, term or condition or working condition of any CONTRACTOR’S TRANSFERRING EMPLOYEES (including without limitation remuneration) arising on or before the SECOND SERVICE TRANSFER DATE;

19.8.6 the employment and/or termination of employment of any person (other than the CONTRACTOR’S TRANSFERRING EMPLOYEES) whose employment is transferred to the UNIVERSITY and/or the REPLACEMENT CONTRACTOR pursuant to the EMPLOYMENT REGULATIONS and/or any claim made by or in respect of any person employed or engaged or formerly employed or engaged by the CONTRACTOR (or any SUB CONTRACTOR) (other than a CONTRACTOR’S TRANSFERRING EMPLOYEE) for which it is alleged (whether correctly or not) that the UNIVERSITY or any REPLACEMENT CONTRACTOR is or may be liable by vurtue of this agreement and/or the EMPLOYMENT REGULATIONS;

19.8.7 any act or omission of the CONTRACTOR (or any SUB CONTRACTOR) in relation to its obligations under regulation 11 of the EMPLOYMENT REGULATIONS, or in respect of an award of compensation under regulation 12 of the EMPLOYMENT REGULATIONS;

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19.8.8 any claim made by the CONTRACTOR’S TRANSFERRING EMPLOYEES or their representatives in relation to any breach of regulations 13,14 or 15 of the EMPLOYMENT REGULATIONS; and

19.8.9 any statement communicated to or action done by the CONTRACTOR or in respect of any of the CONTRACTOR’S TRANSFERRING EMPLOYEES on or before the SECOND SERVICE TRANSFER DATE regarding the SERVICE TRANSFER which has not been agreed in advance with the UNIVERSITY in writing.  

19.9 In the event that any employee, officer, agent of the CONTRACTOR (or SUB-CONTRACTOR) who is not named on the CONTRACTOR’S FINAL STAFF LIST (referred to as an UNNAMED PERSON) transfers, or asserts that they have transferred or should transfer to the UNIVERSITY or a REPLACEMENT CONTRACTOR, and/or asserts that the UNIVERSITY or a REPLACEMENT CONTRACTOR has inherited any liability in relation to any such UNNAMED PERSON whether pursuant to the EMPLOYMENT REGULATIONS, or otherwise, the parties agree:

19.9.1 that the UNIVERSITY or any REPLACEMENT CONTRACTOR may terminate the employment or engagement of any such UNNAMED PERSON; and

19.9.2 the CONTRACTOR shall (on behalf of  itself and any SUB-CONTRACTOR) indemnify in full and hold the UNIVERSITY and any REPLACEMENT CONTRACTOR harmless against any and all claims, costs, expenses, proceedings, damages, compensation, fines, demands or liabilities whatsoever and howsoever arising  in respect of such UNNAMED PERSON (including any liability to taxation and legal and other professional fees and expenses (together with any VAT thereon)) that the UNIVERSITY or any REPLACEMENT CONTACTOR may suffer, incur, sustain, pay or be put to by reason of, on account of or arising out of any such employment, engagement and/or termination and/or liabilities otherwise arising.

19.10The parties agree that the Contracts (Rights of Third Parties) Act 1999 shall apply to clauses 19.1 to to the extent necessary to ensure that any REPLACEMENT CONTRACTOR shall have the right to enforce the obligations owed to, and indemnities given to, the REPLACEMENT CONTRACTOR by the CONTRACTOR or the UNIVERSITY to the CONTRACTOR under clauses Error:Reference source not found to in its own right pursuant to section 1(1) of the Contracts (Rights of Third Parties) Act 1999.

19.11Notwithstanding clause 19.10, it is expressly agreed that the parties may by agreement rescind or vary clauses 19.1 to 19.10 without the consent of any other person who has the right to enforce any of those terms notwithstanding that such rescission or variation may extinguish or alter that person's entitlement under that right.

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