Guidance
The issue of provision of a service is where TUPE appears to be most confusing, but is perhaps not as confusing as it initially seems. It is this area, of TUPE legislation, that most often affects the voluntary sector.
Provision of service can be part of a business. But to fall within the Regulations the service provision must involve:
"an organised grouping of employees… which has as its principal purpose the carrying out of the activities concerned on behalf of the client".
Therefore your current finance team will be providing you with a service, and they may be eligible to TUPE across to CASE Accountancy Services, if CASE Accountancy Services than takes over the book-keeping function.
The legislation is intended to confine the Regulations to contractors with a dedicated team providing a particular service. If there is no such identifiable team and the work is rotated around different staff then TUPE will not apply. A single individual can be a "grouping". So if you employ one individual to carry out a book-keeping service, and then CASE Accountancy Services takes over, TUPE applies.
However, "one off" services of "short term duration" are excluded from the Regulations. For guidance (which doesn't help that much) the government had stated it to be "desirable", even if a client engages a particular contractor on a number of separate occasions to provide one-off services on its behalf, that TUPE should still not apply if this is simply "coincidental" and on each occasion the client has no intention that the arrangement should become an ongoing "preferred supplier" one.
Services that involve merely the supply of goods for the client's use are not covered by the Regulations. So, for example, supplying sandwiches to a workplace canteen does not come under TUPE. But where the contractor is engaged to actually run the staff canteen, this would fall within the new Regulations.
Defining a transfer
By way of broad guidance TUPE has been found to apply to:
• mergers
• sales of a businesses by sale of assets
• a change of licensee or franchisee
• the gift of a business through the execution of a will
• contracting out of services
• changing contractors
• Where all or part of a sole trader's business or partnership is sold or otherwise transferred.
Organizations are strongly advised to get legal advice in all cases of TUPE.
Sources of further information are also listed at the end of this document.
If you are considering using the CASE Accountancy Services book-keeping service you should ensure that you take the proper legal advice and have a thorough understanding of why you want to outsource the function:
In order to assist you with the TUPE process CASE Accountancy Services has teamed up with Real People, a Social Enterprise HR Consultancy in the voluntary sector, who can help you to deal with all of the employment issues associated with outsourcing. Real People will help you to work out what people issues you need to be aware of in your own particular circumstances. If you are in London this can be done in a face to face meeting, or if you are outside of London it can be done through a telephone call. In addition, Real People will work with you to create a timetable for consulting with staff and provide you with a set of template letters and documents for you to use for consulting with staff and their representatives. You can also access 2 hours of helpline support for TUPE advice. For this, Real People would change a fixed fee of £500 + VAT. Anything above this would be charged at £80 per hour + VAT.
As in any complicated TUPE situation, on occasion you may need to get the advice of an employment solicitor. To this end, Real People works with a highly regarded employment law firm who will provide customers who buy the above package any more specialist legal support required at the discounted rate of £160 per hour + VAT (usually £200 per hour).