Staff Transfers in the Public Sector - A Consultation Document on a Proposed Statement of Practice

The Cabinet Office issued in July a consultation document about the treatment of staff involved in Public Private Partnerships (PPP) and in the modernisation of the public sector.

The basic approach proposed in the consultation document is aimed at ensuring there is certainty and clarity and ensuring that the public sector staff involved are treated fairly and consistently and that their rights are protected. It is proposed to achieve this across the whole public sector through a consistent and comprehensive policy that effectively applies the Transfer of Undertakings (Protection of Employment) Regulations across the board.

In particular, the proposal is that TUPE should be treated as applying to all general situations where a service or function is contracted out, re-tendered, brought back into the public sector, transferred within the public sector or restructured and reorganised in a new way in a different part of the public sector. The Government accepts that there will be some genuinely exceptional circumstances where TUPE will not apply but believes that attempts to orchestrate a non-TUPE bid in other circumstances should not be tolerated.

The general principles of policy are therefore proposed to be:-

1.Contracting exercises with the private sector and voluntary organisations and transfers between different parts of the public sector will be conducted on the basis that staff will transfer and TUPE will apply, unless there are genuinely exceptional reasons not to do so.

2.This will equally apply on second and subsequent round contracts which result in a new contractor and where a function is brought back into the public sector where staff originally transferred from the public sector.

3.In circumstances where TUPE does not apply in strict legal terms to certain types of transfer within the public sector, the principles of TUPE should be followed and the staff involved should be treated no less favourably than if the Regulations had applied.

4.There should be appropriate arrangements to protect occupational pensions, redundancy and severance terms of staff in all these types of transfer. H M Treasury's statement of practice on staff transfers from Central Government "A Fair Deal for Staff Pensions" must be followed by Central Government Departments and agencies and ministers expect this also to be adopted by other public sector employers as quickly as possible.

It is expected that individual Local Authorities will adopt these principles but the principles once finally approved will be binding upon Central Government Departments, and agencies, non-departmental public bodies and the National Health Service.

Further, copies of the consultation paper are available on the Cabinet Office Website (www.cabinet_office.gov.uk/civilservice/). The consultation period closes on Tuesday, 5th October 1999.