Why the bare minimum is not enough for TUPE success

I’m Peter Webster, chief executive of Corps Security, and this is where I examine the issues affecting the security industry. My thoughts and opinions are intended to generate debate and whether you agree or disagree with them, you’re welcome to post your comments below.

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When talking to people in the security industry I’m often dismayed at the general attitude towards TUPE. At best it is considered a necessary evil, while at worst it is seen as an overzealous piece of red tape that only serves to make what could be a simple process much more difficult. My view, however, is very different.

As most of us are aware, The Transfer of Undertakings (Protection of Employment) Regulations, to use their full title, are there to protect employees’ terms and conditions of employment when a business or service is transferred from one owner or supplier to another. While I accept that TUPE can seem like a daunting prospect for any organisation embarking on a service provision transfer, when the process is carried out to the highest possible standards it can offer significant benefits to all concerned.

Ensuring that any changeover happens as smoothly as possible requires efficient management, cooperation and communication between the client, the outgoing and incoming service providers, and the employees. Unfortunately, this doesn’t always happen as a matter of course.

TUPE provides a basic legal framework to adhere to and failure to comply can result in serious repercussions for any company guilty of flouting the law. However, even when legal compliance has been achieved it is not unusual for employees to be viewed as commodities, or even as an inconvenience. It is therefore no surprise that so many transfers result in dissatisfaction and animosity between the various parties, leading to deterioration in the standard of service provided.

To avoid this happening I strongly believe that legal compliance should be viewed as a bare minimum requirement. Companies that approach the issue with a policy of inclusivity, communication, consultation and best practice will be rewarded with a more motivated and engaged workforce – ultimately ensuring that high levels of productivity and service provision are maintained.

For those caught in the middle of the process – the employees – a TUPE transfer can be a very unsettling time. There is joint liability between the transferor and transferee for any failure to consult, so it is in both parties’ interests to make sure they inform any affected personnel of the fact that the transfer is to take place, the date or proposed date of the transfer and the reasons behind it. There are a variety of ways of doing this though, and some are much better than others.

Simply sending out a letter lacks the reassurance and ‘personal touch’ that employees welcome in such a situation. Many forward thinking organisations consider it best practice to set up face-to-face meetings, followed up by a detailed letter that reiterates the points made. To ensure that the transfer is as seamless as possible a detailed transition plan should be developed that sets out responsibilities and key objectives for all involved.

Not only should the new company do its best to provide employees with the appropriate advice and assistance at all key stages, it should use the consultation as an opportunity to demonstrate it is going to be as good, if not better, than the existing employer. We have found that talking about issues such as training, career development and uniform, along with providing the support and visibility of senior management, helps convince personnel that their best interests are at heart.

There’s no escaping the fact that sometimes the client’s main reason for wanting to change their manned guarding services supplier is due to the security officers themselves. Therefore, they might well think that if they are forced to keep the same people on, what’s the point of changing?

Well, the attitude, conduct and professionalism of security officers can be addressed in a variety of positive ways post-TUPE. A company that offers thorough training, good management and supervision will often get the best out of people. However, if positive measures fail to have the desired impact and the problems persist, the new employer can then continue the disciplinary process until a satisfactory conclusion is reached.

While my approach towards TUPE is unashamedly positive, I must also offer a few words of caution. Although much has been achieved in terms of being able to implement TUPE with a degree of certainty, this has been jeopardised following the Court of Appeal’s recent decision in the case of McCarrick v Hunter. Its verdict has thrown into question the applicability of TUPE for subcontractors in the event that a client introduces a new facilities management company. Although the case may yet again be appealed, this judgement could revert us back to the time when we had to second guess whether TUPE applied or not. I do hope that the current government review into the regulations bears this in mind.

Despite the potential ramifications of McCarrick v Hunter, we should always remember and respect the fact that TUPE is ultimately designed to ensure that employees are not disadvantaged. The challenges facing the various parties involved may differ, but taking the time to go beyond the basic requirements will ensure that employees are positive about their situation, while the new service provider will be confident about being able to raise standards of service.

Perhaps it’s time that we re-evaluate the TUPE process and try to accentuate the positives that it can offer all parties.

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