Government announcements on the abolition of NHS England and a broader restructuring of the NHS in England will leave many managers with questions about their rights if they transfer within the NHS, to other public sector employers like the civil service, or to the private sector. Structural reform can be unsettling, so it helps to know where the law stands.

In principle, the Transfer of Undertakings (Protection of Employment) Regulations 2006, commonly known as ‘TUPE’, apply where a transfer results in a change of employer. The regulations aim to protect the terms and conditions of employees who transfer. Under TUPE, an employee’s contract of employment and the liabilities for employment rights (except pensions) transfer to the new employer, with continuity of employment preserved.

However, TUPE does not apply when administrative functions are transferred between public authorities, such as within the NHS or between the NHS and other parts of the public sector—unless the functions are defined as an ‘economic activity’, such as providing goods and services where there is a market for them.

The secretary of state has the power to introduce similar protection to TUPE under section 38 of the Employment Relations Act 1999, and has exercised it in the past in relation to specific events. For example, regulations were introduced in 2013 covering the transfer of staff from various public bodies to Public Health England.

However, the Cabinet Office Statement of Practice (COSOP), which applies to government departments, agencies and the NHS, states that the TUPE principles should be applied to transfers within the public sector. All affected staff should be able to transfer on terms that are, overall, no less favourable than if TUPE applied. COSOP is only guidance, so while it’s rare for employers not to apply it, it would be difficult to enforce legally.

One of the key TUPE obligations is to inform and consult the appropriate representatives of the affected employees, usually the union if it’s recognised or has elected representatives. These are two distinct rights.

The information that must be provided — far enough in advance of the transfer to allow time for consultation — includes.

The duty to consult only applies if the existing employer is proposing measures affecting staff in connection with the transfer. Usually, it will be the new employer who intends to take such measures after the transfer.

An individual employee can object to being transferred but will not be treated as having been dismissed, so cannot bring a claim for unfair dismissal.  

Any changes to terms and conditions are void if the reason for them is purely the transfer — even if the employee agrees to them. An example would be changes made solely to harmonise terms and conditions of employment.

Changes to the contract will be valid if there is an ‘economic, technical or organisational’ (ETO) reason, and the employer and employee agree to them. An ETO reason can be a change in the nature of the job, a change in headcount (typically a redundancy situation) or a change in the place of work. In addition, changes will not be void if the contract permits them or they are unconnected with the transfer.

COSOP provides that there should be appropriate arrangements to protect occupational pensions of public sector staff. The Fair Deal Policy 2013 covers arrangements for staff who are compulsorily transferred outside the public sector. Under this policy, transferred staff can stay in the relevant public service pension scheme as long as they continue to provide the outsourced services or function.

Transfers can raise complex issues which affect your terms and conditions and can give rise to legal cases. So it’s best to seek advice from your MiP representative as early as possible— especially as the time limits for lodging legal claims are very short. //