Could schools providing a breakfast club be insourcing and therefore a TUPE occurs? By Imogen Edmunds, Chartered FCIPD, Managing Director, Redwing Solutions.
The new Government policy creating free breakfast club provision in all state primary schools is currently being tested ahead of full national roll out. Whilst the date for the national roll out is yet to be announced this gives us lots of time to work out where the snagging points are. Rebekah, OOSA CEO, asked Imogen, MD at Redwing Solutions, our HR partners, whether this initiative rolling out could trigger TUPE considerations. Imogen has written a blog post to explain how this is definitely something that both OOSA Members and DfE should keep on their radar.
This question arises due to the Transfer of Undertakings (Protection of Employment) Regulations 2006. Affectionately known up and down the land as TUPE.
When Does TUPE Apply?
TUPE applies to a ‘relevant transfer’. There are two types of relevant transfer, set out in regulation 3 of TUPE 2006:
1. a business transfer
2. a service provision change
What constitutes a transfer?
A ‘Transfer’ just means that ownership or responsibility passes from one organisation to another.
The type we are particularly interested in for the purposes of school’s having breakfast clubs is the service provision change.
Service provision changes
There are three ways in which a service provision change can happen:
1. Outsourcing. An organisation stops doing certain activities on its own behalf and gets a contractor to do it instead. The transfer is from organisation to the contractor.
2. Re-tendering. The organisation changes from one contractor to another to carry out the activities in question. The transfer is from outgoing contractor to incoming contractor.
3. In-sourcing. The organisation takes work back from a contractor and decides to do it in-house. The transfer is from contractor back to the organisation.
Conditions for a service provision change to trigger TUPE
There are certain conditions that must be satisfied for TUPE to apply:
• There must be an organised grouping of employees whose main purpose is to carry out those activities on behalf of the client. Those are the employees who will transfer. This could be a Out of School Club business who operates with the same team of Playworkers delivering the service each week in that school.
• The activities must be fundamentally the same before and after the transfer. Looking after children before school, providing with a breakfast, will be what most before school clubs in the UK do. This is not a specialist language class or sports coaching session before school.
• There must be an expectation to carry out the activities on an ongoing basis rather than for a single event or on a short-term basis. On going arrangements come under TUPE, one off events, do not.
• The activities must not be related only to the supply of goods.
So, where does TUPE not apply
1. where a business simply changes the suppliers it buys something from. The service provision change must involve the supply of services as well as goods.
2. to a single event or short-term task. So, it does not apply when a business brings in services for a one-off event, such as a conference or exhibition.
3. to share sales. When a company is taken over in a share sale, the identity of the employer does not change. The employees continue to be employed by the same company
For us, we must turn our attention to the requirement that the activities must be fundamentally the same before and after the transfer. The example I was taught was that if a catering firm had the catering contract for a large business and it cooked and served dinners every day in the staff canteen. If that contract ended and the large business installed vending machines that served chilled foods the staff could self-serve then the activity would not be fundamentally the same before and after the transfer. In this case, TUPE is unlikely to apply, because the activities before and after the contract change are not fundamentally the same.
Therefore, to answer the question, could schools providing a breakfast club be insourcing and therefore a TUPE occurs? I think it could. Much will depend on the contracts between the parties, the willingness for it to be seen as a transfer, whether the activities will be fundamentally the same and whether there is a distinct organised grouping of employees whose job is to provide the service before the transfer. Specialist advice should always be sought as to your responsibilities under the regulations before a possible transfer.
Please contact Imogen directly if you need any support: imogen.edmunds@redwing-solutions.co.uk.