John McMullen considers if TUPE is alive & well
Recent months have seen vigorous debates about the policy aspects of protection of employees’ rights on business transfers and outsourcing, as well as the usual crop of case law. We take the opportunity to analyse these in this article.
Death of the codes of practice?
In relation to public sector outsourcing, the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) (TUPE), are supplemented by codes of practice. The primary source is the cabinet office guidance on Staff Transfers in the Public Sector (COSOP), originally dated January 2000 but revised in November 2007. An important aspect of COSOP is Annex A, which deals with pensions: Staff Transfers from Central Government: A Fair Deal for Staff Pensions: Guidance to Departments and Agencies (HM Treasury, 1999) (the Fair Deal policy). This obliges contractors to make broadly similar pension provision to that available from the previous public sector employer. The broad similarity of the contractor’s provision has traditionally been tested by the award of a government actuaries department (GAD) certificate of comparability.
