Third Guiding Principle – Staff Transfers
(Accepted by Government with commentary – 06/12/06)
This Guiding Principle deals with statutory rights to transfer including the Transfer of Undertakings (Protection of Employment) Regulations 2006 ( TUPE), Pension Rights and dispute resolution and the production of a Code of Practice.
The Public Service Commission recommends that:
- Government make statutory provision for staff transfers, which is fully consistent with domestic and European legislation, for all those employees, in the RPA Affected Group, who will move to a new or different organisation as a result of decisions following the Review of Public Administration. The wording of the statutory provision should be replicated consistently in all relevant legislation in order to ensure fair and equitable treatment for all staff in the RPA Affected Group.
- The Transfer of Undertakings (Protection of Employment) Regulations 2006 shall apply to all transfers arising from the Review of Public Administration and, to ensure certainty, Government should declare that all such transfers are relevant transfers for the purposes of those regulations. The Government should ensure the statutory provision puts beyond doubt that no employing authority will have the right to challenge or limit the determination by the Government that the transfer is a relevant transfer so as to prevent or restrict the protection of continuity of staff rights under such a transfer.
- Any pension scheme, into which an employee is transferred must, in the opinion of a professionally qualified actuary, provide benefits that are no less favourable taken as a whole than those provided by the pension scheme of which that employee was a member on the day before transfer. The actuarial assessment will include all benefits in respect of old age, invalidity and survivors’ benefits arising from their occupational pension scheme membership.
- Government should make statutory provision for independent third party resolution processes for dealing with disputes arising uniquely from the implementation of the RPA. The effect of such provision will be to provide for compensation for actual loss where there is material detriment to existing terms and conditions.
The Public Service Commission recommends the following actions be taken by Government:
- The preparation, in consultation with the Public Service Commission, relevant public service employers and the relevant trade unions, of an RPA Code of Practice, which would establish the key principles for statutorily-based staff transfer schemes and transfer arrangements, including pensions provision and independent third party resolution processes. The RPA Code of Practice should reflect statutory provisions and be prepared and promulgated well in advance of the proposed transfer date.
- Ensure the development, well in advance of the proposed date of transfer, of written statutorily-based staff transfer schemes which are compliant with all relevant statutory obligations and the RPA Code of Practice, which should be the subject of established consultation and negotiation arrangements.
- The setting up of appropriate joint employers and trade union arrangements to ensure the effective management of HR issues following transfer and which would complement the already established Central Joint Forum.
The Public Service Commission also recommends that Government should require from employers:
- Implementation of the policies and practices as detailed in the written statutorily-based staff transfer scheme.
Addendum to third Guiding Principle – Staff Transfers
- An employee should transfer to the organisation which is taking over the functions on which s/he is engaged immediately before the transfer of functions. Where, however, a decision on an assignment for the transfer is required, a range of factors including the preferences and circumstances of the employee and the needs of the business will be taken into consideration. Any decision will be taken in consultation with the relevant trade union and the receiving organisation. Management should consult with the relevant trade unions and other representatives of staff before advising individuals of their designated employer.
- If an individual member of staff wishes to appeal against his/her designated employer or a change of location of his/her workplace, this should be made in accordance with the provisions for third party resolution of disputes.
- The implementation of the Review of Public Administration decisions may provide an opportunity for management to consider personal preferences of staff in respect of location, working patterns etc. and to minimise hardship/domestic disruption for individual staff. Initially such consideration should be given within each sector, but Government should ensure that arrangements are set up for cross sector co-operation. Individual decisions will be dependent on business need. If staff take on new roles or responsibilities, as a result of the transfer, adequate training and support should be provided.
- Where the transfer gives rise to a surplus of staff, employers should deal with this, as appropriate, by using mechanisms such as the offer of suitable alternative employment, by internal competition, employment in another organisation or voluntary severance schemes.
The main issue of emphasis is the rights to transfer and TUPE and further information can be sourced on the following links.