Step One: determine whether TUPE applies
As soon as we become aware that there is a potential for part of the departments operations to be transferred to an external organisation, irrespective of the size of the operation and the number of individuals assigned to the operation, we will need to assess the possibility that the transfer will be covered by TUPE.
It is essential that this is established early, not only to ensure that all legal duties arising from TUPE are actioned in advance of the transfer taking place, but also to ensure that we gain the confidence and co-operation of the staff that may be transferring out.
The application of TUPE depends on the particular circumstances of each case. Generally, it will be wise to assume that the regulations apply to any transfer.
Step Two: establish which employees are affected
Having established that TUPE applies we will need to decide which employees will have the protection of the regulations.
The regulations apply to all employees, including those employed on a part-time basis and those employed on fixed-term or temporary contracts. TUPE defines an employee as an individual who works under a contract of employment or apprenticeship. So individuals who provide services under a contract for services, for example, the self-employed, consultants, or agency workers, are not covered.
Only employees employed by the department immediately prior to the transfer and in the specific area concerned will have protection under the regulations and will transfer under TUPE. We will first need to identify those employees who are permanently assigned to the specific work of the department whic