Sunderland 700/701 TUPE dispute

[Teapot42]

Practically, how does that happen though? Who employs staff, takes on lease agreements?

I don't know enough (anything!) about business law to know what would be possible. I'd imagine some variation of the administration process might work? This does allow the business to be run as a going concern by the administrator, so I wonder if something along the same lines would work?

Of course even going in to this process would worry suppliers and anyone owed money by the operator, so there is still the likelihood the business would fold in the near future anyway.

You could also argue there is a cost involved, but there is a cost anyway if an operator fails, it's just a case of who pays. It would at least allow things like tendered services to be retendered in a more controlled manner. Close to home, the impact of Hulleys failing is still in evidence with some areas unserved and others without evening or Sunday services. While answers don't appear to be forthcoming, I also suspect DCC / EMCCA are paying more for less provision. Had a more controlled process been possible I suspect this would be different.

 

[TheGrandWazoo]

I don't know enough (anything!) about business law to know what would be possible. I'd imagine some variation of the administration process might work? This does allow the business to be run as a going concern by the administrator, so I wonder if something along the same lines would work?

Of course even going in to this process would worry suppliers and anyone owed money by the operator, so there is still the likelihood the business would fold in the near future anyway.

You could also argue there is a cost involved, but there is a cost anyway if an operator fails, it's just a case of who pays. It would at least allow things like tendered services to be retendered in a more controlled manner. Close to home, the impact of Hulleys failing is still in evidence with some areas unserved and others without evening or Sunday services. While answers don't appear to be forthcoming, I also suspect DCC / EMCCA are paying more for less provision. Had a more controlled process been possible I suspect this would be different.

The thing is that you do this for local bus services but what about coach operators? Remember that a lot of what A&A was doing related not just to schools work but stuff like rail replacement. What about hauliers - they account for far more issues that coach and bus operators. If you appoint this shadow team of pseudo administrators... who is paying for those? And as you say, once that sort of thing happens, you're probably signalling the death knell of a business anyway.

I like what @Tetchytyke suggested though it may have limitations and certainly better than now. Better to have better enforcement and changes to the legislation so that the onus is on operators to provide documentation in full in line with stipulated timelines rather than the outright obfuscation and delaying tactics that seemed to be theme in this case.

 

[Teapot42]

The thing is that you do this for local bus services but what about coach operators? Remember that a lot of what A&A was doing related not just to schools work but stuff like rail replacement. What about hauliers - they account for far more issues that coach and bus operators. If you appoint this shadow team of pseudo administrators... who is paying for those? And as you say, once that sort of thing happens, you're probably signalling the death knell of a business anyway.

I like what @Tetchytyke suggested though it may have limitations and certainly better than now. Better to have better enforcement and changes to the legislation so that the onus is on operators to provide documentation in full in line with stipulated timelines rather than the outright obfuscation and delaying tactics that seemed to be theme in this case.

It strikes me there is more of an impact where bus services and longer term contracts such as school, works etc are involved. Rail replacement tends to be of a short term nature, so in theory easier to replace an operator who goes out of business. As for hauliers, I'm sure there will be cases where a missed delivery causes significant consequences, but that's likely to be less of the case than a school bus not turning up of an afternoon.

As I inferred, the TC budget would need increasing to pay for this, but it may well be that the overall cost to government / the economy is lower than the unmanaged collapse of an operator. Unfortunately I do recognise that there is a tendency to see money in pots rather than take a more holistic view.

I certainly have no argument that better control of who runs these businesses is needed, but I'm looking at this having witnessed Hulleys collapse and the impacts on the passengers both at the time and ongoing. Just one village over from us, Holymoorside still has no late evening or Sunday services, and the main route out of Chesterfield to the east has no buses after early evening and only four on Sunday, down from two an hour at one point in the recent past. In both cases the affected services received money from DCC which seemingly was no longer available when the services needed replacing, likely because the short notice nature of the retendering meant the pencils of the tendering operators weren't as sharp as they maybe would be in a more organised contest.

 

[TheGrandWazoo]

It strikes me there is more of an impact where bus services and longer term contracts such as school, works etc are involved. Rail replacement tends to be of a short term nature, so in theory easier to replace an operator who goes out of business. As for hauliers, I'm sure there will be cases where a missed delivery causes significant consequences, but that's likely to be less of the case than a school bus not turning up of an afternoon.

As I inferred, the TC budget would need increasing to pay for this, but it may well be that the overall cost to government / the economy is lower than the unmanaged collapse of an operator. Unfortunately I do recognise that there is a tendency to see money in pots rather than take a more holistic view.

I certainly have no argument that better control of who runs these businesses is needed, but I'm looking at this having witnessed Hulleys collapse and the impacts on the passengers both at the time and ongoing. Just one village over from us, Holymoorside still has no late evening or Sunday services, and the main route out of Chesterfield to the east has no buses after early evening and only four on Sunday, down from two an hour at one point in the recent past. In both cases the affected services received money from DCC which seemingly was no longer available when the services needed replacing, likely because the short notice nature of the retendering meant the pencils of the tendering operators weren't as sharp as they maybe would be in a more organised contest.

So what you are suggesting is some sort of very limited safety net for local buses and schools contracts for if a contractor loses an O license of goes belly up. That's really dealing with the outcome rather than preventing these sorts of operators and it is very limited as it doesn't cover all road transport operators.

Taking Hulley's as the example. They went pop because of poor management, poor service (depressing revenue) and poor cost control among other issues. You could have some sort of "shadow structure" that can be parachuted in, take on the drivers, source vehicles etc. It's probably quicker and more cost effective to reach out to other operators and fill the gaps as what happened.

As for your Holymoorside example... that may be more reflective of Hulley's figures being unsustainable (which is one reason why they went bust). In that instance, when the services were retendered, realistic and sustainable costings mean that the available funds don't stretch as far. In that case, it's up to DCC to either find some more money or cut their cloth but either which way, I don't see how it keeps rogue operators out of the industry.

 

[Resuwen]

Let us not forget who we are dealing with here:

https://hopenothate.org.uk/2021/04/30/meet-the-bus-driver-and-his-friends-wanting-to-free-a-convicted-nazi-terrorist/

 

[Megafuss]

Believe some have ended up at DM Motor Services

 

[Teapot42]

So what you are suggesting is some sort of very limited safety net for local buses and schools contracts for if a contractor loses an O license of goes belly up. That's really dealing with the outcome rather than preventing these sorts of operators and it is very limited as it doesn't cover all road transport operators.

I can't see a way to prevent them completely. Fully agree that repeat offenders need tackling, but it's difficult to (fairly) tell who will offend until you get to the point where intervention is necessary.

There are also bound to be cases where problems aren't caused by malice and recovery or at least the ability to sell an operation as a going concern would be possible. The nature of bus operations means that, unlike most other businesses, this isn't viable.

As we are talking Hulleys (and apologies to the mods who may feel this discussion is better split on to a new thread) that's a good case where a viable business could have been salvaged and passengers better served. They were called up to the TC long before things actually spiralled out of control. If, at an early stage such as that, there was a way to offer support then that could help inexperienced operators gain the understanding they need to recover. If that offer was rejected, then having the option to take control before things got too bad would also allow the business to possibly be salvaged and a more orderly transition to happen.

As we are mainly talking smaller operators who are likely to run socially necessary services then it's possibly even a way for councils to take over the operation of these.

Currently, once a business starts getting in to trouble you won't get another operator looking to buy as they know it's easier to wait until things go belly up and they don't need to spend anything to get their hands on the routes. That's not good for the passengers as they have to endure the poor service during the death spiral plus the uncertainty during the rushed replacement process, plus you can get cases where fares rise considerably, either due to the structure of the new operator, or because a journey once possible on one operator is now split over two or more.

Taking Hulley's as the example. They went pop because of poor management, poor service (depressing revenue) and poor cost control among other issues. You could have some sort of "shadow structure" that can be parachuted in, take on the drivers, source vehicles etc. It's probably quicker and more cost effective to reach out to other operators and fill the gaps as what happened.

As for your Holymoorside example... that may be more reflective of Hulley's figures being unsustainable (which is one reason why they went bust). In that instance, when the services were retendered, realistic and sustainable costings mean that the available funds don't stretch as far. In that case, it's up to DCC to either find some more money or cut their cloth but either which way, I don't see how it keeps rogue operators out of the industry.

Without actual figures (which DCC are reluctant to provide) it's hard to tell. Services which weren't previously tendered (daytime 84, 55, most of the 257) are now reliant on EMCCA funding to operate. The 257 was even tendered at nearly double the frequency it was being operated commercially. All BSIP supported evening and Sunday services appear to have gone completely. Some gaps were difficult or impossible to fill as other operators didn't have the resources to replace services quickly which I'm sure limited the number of bidders. Fundamentally, I don't think a rushed process benefits anyone.

I don't disagree that the figures Hulleys tendered with were not sustainable. Some of that was out of their control as many of the tenders were pre-Covid, and costs have spiralled since.

I do feel that with more competent management and an earlier intervention it would have been possible to get a better result for passengers.

 

[TheGrandWazoo]

Without actual figures (which DCC are reluctant to provide) it's hard to tell. Services which weren't previously tendered (daytime 84, 55, most of the 257) are now reliant on EMCCA funding to operate. The 257 was even tendered at nearly double the frequency it was being operated commercially. All BSIP supported evening and Sunday services appear to have gone completely. Some gaps were difficult or impossible to fill as other operators didn't have the resources to replace services quickly which I'm sure limited the number of bidders. Fundamentally, I don't think a rushed process benefits anyone.

I don't disagree that the figures Hulleys tendered with were not sustainable. Some of that was out of their control as many of the tenders were pre-Covid, and costs have spiralled since.

I do feel that with more competent management and an earlier intervention it would have been possible to get a better result for passengers.

Have you made an FOI request?

Given the way Hulleys were operating, they may have marginally costed those routes that they took on and/or the post Covid environment saw routes that were barely covering their costs then become unsustainable. I suspect the reality was that the services weren't and aren't sustainable commercially, and that even when replacing tendered work as you say, the costs were markedly higher. Without a bigger pot of money, DCC would have had a problem any which way.

They were called up to the TC long before things actually spiralled out of control. If, at an early stage such as that, there was a way to offer support then that could help inexperienced operators gain the understanding they need to recover. If that offer was rejected, then having the option to take control before things got too bad would also allow the business to possibly be salvaged and a more orderly transition to happen.

As we are mainly talking smaller operators who are likely to run socially necessary services then it's possibly even a way for councils to take over the operation of these.

Currently, once a business starts getting in to trouble you won't get another operator looking to buy as they know it's easier to wait until things go belly up and they don't need to spend anything to get their hands on the routes. That's not good for the passengers as they have to endure the poor service during the death spiral plus the uncertainty during the rushed replacement process, plus you can get cases where fares rise considerably, either due to the structure of the new operator, or because a journey once possible on one operator is now split over two or more.

Depends what we we want the TCs to do? We want them to manage legal compliance of all truck, bus and coach operators and to keep us safe as their primary aim. To be honest, they haven't enough resources as it is and the legislation doesn't always help them; not certain that we want them to act as some sort of safety net. As for step in rights... When operators shut up shop, local authorities generally have some knowledge and have contingency plans in place. Step in too early and you can be open to accusations of being too hasty. Hulleys failed in 2025 but you could have argued that someone could've stepped in at any time in the previous 3 years.

In this instance with CTG, getting back on topic, the service compliance on the 700/701 routes was woeful and the tendering authority did what they should. They advised/warned CTG, things didn't improve so they stripped them of the contract and got in an emergency contract, and have now let it to a firm with a good reputation.

 

[duncombec]

As public contracts, minimal data should be publicly available in any case under standard disclosures: this usually consists of the winning bidder, the number of bids received, the lowest and highest compliant bids received, and any reasoning for not going with lowest (e.g. route bundling). Some councils make this freely available on their website (e.g. Surrey); others you have to ask for it. (And they may tell you you need FOI - I have used a Surrey PDF to explain what I seek, then they realise what you mean).

As I highlighted recently in another thread, O-licence discs are actually considered property, and as such, they cannot be confiscated/seized/cancelled lightly. The same rules that stop the TC removing them for minor infractions are the same ones that stop the police from seizing your car if you got a yellow box fine. (Outline source: One of the TCs giving last year's Omnibus Society after-dinner speech) As such, any form of "suspension" or "temporary running" is likely to run into the same difficulties... not to mention the OTC is still behind with registrations (although less than it was), and substantially understaffed. Unsafe HGVs seem to take a far greater proportion of their time than they should.

 

[TheGrandWazoo]

As public contracts, minimal data should be publicly available in any case under standard disclosures: this usually consists of the winning bidder, the number of bids received, the lowest and highest compliant bids received, and any reasoning for not going with lowest (e.g. route bundling). Some councils make this freely available on their website (e.g. Surrey); others you have to ask for it. (And they may tell you you need FOI - I have used a Surrey PDF to explain what I seek, then they realise what you mean).

As I highlighted recently in another thread, O-licence discs are actually considered property, and as such, they cannot be confiscated/seized/cancelled lightly. The same rules that stop the TC removing them for minor infractions are the same ones that stop the police from seizing your car if you got a yellow box fine. (Outline source: One of the TCs giving last year's Omnibus Society after-dinner speech) As such, any form of "suspension" or "temporary running" is likely to run into the same difficulties... not to mention the OTC is still behind with registrations (although less than it was), and substantially understaffed. Unsafe HGVs seem to take a far greater proportion of their time than they should.

Can't disagree with what you say

As for unsafe HGVs... there's simply a lot more HGVs vs PCVs.

 

[34D]

Let us not forget who we are dealing with here:

https://hopenothate.org.uk/2021/04/30/meet-the-bus-driver-and-his-friends-wanting-to-free-a-convicted-nazi-terrorist/

This guy now runs DM Motor Services Ltd.

Understand he stopped working for City Transport Group in May 2024 so not relevant to either sunderland connect or this merger arrangement.

 

[Teapot42]

Have you made an FOI request?

If I decide I'm really that bothered then that would be the next step. So far I've basically been told it's not my business and they won't release that information publically as it's commercially sensitive.

Being cynical I think it's more likely to show something they don't want, but it's also done, and DCC are no longer responsible for buses here so it's probably not worth the effort.

Given the way Hulleys were operating, they may have marginally costed those routes that they took on and/or the post Covid environment saw routes that were barely covering their costs then become unsustainable. I suspect the reality was that the services weren't and aren't sustainable commercially, and that even when replacing tendered work as you say, the costs were markedly higher. Without a bigger pot of money, DCC would have had a problem any which way.

I think if there were another low cost operator in the area then it might have been viable to run them commercially. Stagecoach seem to manage to do so with the 170 pretty much along the lines of what Hulleys provided minus the BSIP supported extras. Due to the need to get something in place quickly it looks like the 84 was tendered as-was, rather than a review of provision being made to come up with a better solution. Services on the Chatsworth Road corridor are very bitty and could really do with sorting out to give a consistent provision. For example, between 11:12 and 11:38 there are three journeys which run from New Beetwell Street to Brookside, at other times there is an hour gap.

Otherwise though, Andrews I'm told aren't interested in commercial service work, TM / Notts & Derbys and High Peak have too much dead mileage to make things work and Stagecoach will be looking at higher margins.

It would be interesting to know actually how much DCC cost themselves by registering both 170s rather than just the High Peak one which came first, as this would have covered the 84 route commercially. And of course High Peak now do have a local garage, albeit too late to pick anything up when Hulleys went under.

Depends what we we want the TCs to do? We want them to manage legal compliance of all truck, bus and coach operators and to keep us safe as their primary aim. To be honest, they haven't enough resources as it is and the legislation doesn't always help them; not certain that we want them to act as some sort of safety net.

Of course, the same lack of funding which affects them also affects LAs who tender services, opening the door to operators trying to get a foot in without the proper resources.

Again drifting off the subject, but is one body the right approach for truck and bus operators? And where would coach operators fall if they were split?

 

[TheGrandWazoo]

I think if there were another low cost operator in the area then it might have been viable to run them commercially. Stagecoach seem to manage to do so with the 170 pretty much along the lines of what Hulleys provided minus the BSIP supported extras.

Isn't that the problem? That these services are only viable when you have low cost operators who are simply working at a level that it unsustainable.

That there was one good service (the 170) doesn't mean the rest were or are.

Being cynical I think it's more likely to show something they don't want, but it's also done, and DCC are no longer responsible for buses here so it's probably not worth the effort.

Until you ask, you'll never know.

 

[JD2168]

City Transport Operations Limited, the company that was until recently known as A&A Coach Travel has now had its licence revoked

If you want some ‘light’ bedtime reading there is an extensive list of faults and failures in the official report

Decision for CITY TRANSPORT OPERATIONS LTD (formerly A & A COACH TRAVEL LTD) (PB2024186)

Written decision of the Deputy Traffic Commissioner in the North East for City Transport Operations Ltd and transport manager Antoni La Pilusa

www.gov.uk

For the benefit of doubt, this doesn’t effect the company City Transport Group Limited

Quite sobering to read, particularly as some of the vehicles mentioned (Olympus, VDL Gemini’s) were used on Tram Replacements in Sheffield during the summer holidays

 

[GDKEnts]

City Transport group has posted this on there social media

We have submitted our response to the North East Mayoral Strategic Authority consultation on bus reform which runs to 18 pages and 6,300 words. We hope that Kim McGuinness- North East Mayor will sit down with a nice cup of tea or perhaps something stronger.

Anyone who has not yet responded, you have about twelve hours to do so.

Our response includes:
-our detailed views about TUPE and inaction from the Mayor's Office over events earlier this year
-our suggestions of fair ways to support SME operators
-concerns that proposals are not ambitious enough
-a suggestion that a Bus Rapid Transit scheme be considered for the region as a less costly but still as effective alternative to rail extensions (and yes, we sung the praises of both 18metre and 24metre vehicles)
-we implored that the ticketing strategy be given detailed thought

Here's to the future; your franchised City Transport bus departs Monday 1st October 2029

Facebook

www.facebook.com

 

[nick291]

City Transport group has posted this on there social media


We have submitted our response to the North East Mayoral Strategic Authority consultation on bus reform which runs to 18 pages and 6,300 words. We hope that Kim McGuinness- North East Mayor will sit down with a nice cup of tea or perhaps something stronger.

Anyone who has not yet responded, you have about twelve hours to do so.

Our response includes:
-our detailed views about TUPE and inaction from the Mayor's Office over events earlier this year
-our suggestions of fair ways to support SME operators
-concerns that proposals are not ambitious enough
-a suggestion that a Bus Rapid Transit scheme be considered for the region as a less costly but still as effective alternative to rail extensions (and yes, we sung the praises of both 18metre and 24metre vehicles)
-we implored that the ticketing strategy be given detailed thought

Here's to the future; your franchised City Transport bus departs Monday 1st October 2029

I personally don't think they're in a position to comment, especially after events earlier in the year which sparked tnis thread in the first place.

 

[34D]

I personally don't think they're in a position to comment, especially after events earlier in the year which sparked tnis thread in the first place.

Surely the implication, though, is that Nexus or NEMSA should have been more involved in the Sunderland Connect TUPE matter and told either or both of the operators that you should have done xyz instead of, reading in-between the lines of the Nexus Director's quote to the media, left them to sort it themselves:

"We’ve taken all reasonable steps to promptly engage with both parties but cannot comment further on the dialogue between the outgoing and incoming suppliers.”

Whatever ones opinions on either of the operator's concerned, this sort of thing simply could not be allowed to happen to an entire depot full of drivers.

Equally if it turns out that giving a 3 month short tender in between two long term contracts is held to be a valid way to break length of service contracts, stem issues with pension deficits and so on, then we will probably see a lot more of it in other functions where employers change every few years.

 

[TheGrandWazoo]

Surely the implication, though, is that Nexus or NEMSA should have been more involved in the Sunderland Connect TUPE matter and told either or both of the operators that you should have done xyz instead of, reading in-between the lines of the Nexus Director's quote to the media, left them to sort it themselves:

"We’ve taken all reasonable steps to promptly engage with both parties but cannot comment further on the dialogue between the outgoing and incoming suppliers.”

Whatever ones opinions on either of the operator's concerned, this sort of thing simply could not be allowed to happen to an entire depot full of drivers.

Equally if it turns out that giving a 3 month short tender in between two long term contracts is held to be a valid way to break length of service contracts, stem issues with pension deficits and so on, then we will probably see a lot more of it in other functions where employers change every few years.

It's probably more like Nexus don't want to be involved in TUPE as they don't specify the allocation of specific groups of employees to a contract and as such, believe that TUPE does not apply.

In this case, it's CTG who have behaved appallingly IMHO. Go North East had no legal or moral obligation to the drivers as they were simply taking on a short term contract with their existing staff - they were CTG's staff and simply telling them to turn up at Deptford depot is an abdication of responsibility

 

[Deerfold]

It's probably more like Nexus don't want to be involved in TUPE as they don't specify the allocation of specific groups of employees to a contract and as such, believe that TUPE does not apply.

Or they didn't want to get involved in a legal battle they didn't have to be involved in.

 

[34D]

It's probably more like Nexus don't want to be involved in TUPE as they don't specify the allocation of specific groups of employees to a contract and as such, believe that TUPE does not apply.

In this case, it's CTG who have behaved appallingly IMHO. Go North East had no legal or moral obligation to the drivers as they were simply taking on a short term contract with their existing staff - they were CTG's staff and simply telling them to turn up at Deptford depot is an abdication of responsibility

It isnt the incoming operator (new operator) who chooses whether there is a dedicated group of staff, though.

From what I have seen, CTG have just got bits of weekend rail replacement (apart from this forner route) which isnt guaranteed, and so couldn't do much with 9 staff, so it seems like telling nexus and GNE that staff come with the route should have been the fairest thing to all?

 

[Mollman]

It isnt the incoming operator (new operator) who chooses whether there is a dedicated group of staff, though.

From what I have seen, CTG have just got bits of weekend rail replacement (apart from this forner route) which isnt guaranteed, and so couldn't do much with 9 staff, so it seems like telling nexus and GNE that staff come with the route should have been the fairest thing to all?

During the tendering period the incumbent operator is meant to declare if there is TUPE or not. Once the contract is awarded the previous operator then has to supply a list of staff who are eligible to TUPE across, sometimes that is only one or two staff for a contract requiring 5 or more.

 

[Goldfish62]

TUPE requires a formal process, which I don't know. However the staff concerned have to be consulted. The group transferring has to be agreed. The new employer has to see their current contracts presumably before they accept the work contract on offer. The new employer will need the transferring staff to complete an interview and induction process as standard. Paperwork (valid driving license, ...) needs to be checked and new employment signed for. This takes time. You cannot just turn up at the depot without an appointment.

It doesn't sound as if this happened. City cannot just say they will be TUPEd, they have to do it and the drivers receive formal welcome from Go North East.

Go North East has only accepted an emergency short term contract. The long term contract has to be tendered in the normal way and Go North East may not win that. TUPEing those drivers again from Go North East to another provider would be more difficulty unless Go NE set up special arrangements for staffing the 700/701 during the emergency contract.

Even if TUPE was valid, it still has to be implemented up front in a formal, legal manner, which appears not to have happened.

It would be nice to hear the outcome.

Absolutely correct. The existing employer must inform the new employer with at least 28 days notice that they intend to invoke TUPE and must supply full employee data at the same time. If this doesn't happen then TUPE does NOT apply and the existing employer remains fully responsible for the staff it no longer wishes to employ.

So, did City Transport follow this process or not, does anyone know?

 

[35B]

Absolutely correct. The existing employer must inform the new employer with at least 28 days notice that they intend to invoke TUPE and must supply full employee data at the same time. If this doesn't happen then TUPE does NOT apply and the existing employer remains fully responsible for the staff it no longer wishes to employ.

Erm, no - TUPE may apply at much shorter notice (e.g. when a firm goes under and is bought out), and the rules do not allow employers to sidestep obligations by not providing data. @richard13 was also badly wrong in stating that transferees (not new employees)must be interviewed and treated as new - the point of TUPE is that it provides continuity of employment when a job moves from one employer to another.

So, did City Transport follow this process or not, does anyone know?

It would be interesting to know what processes a number of the organisations in this mess followed, and what the outcomes were. From what can be seen, all emerge with discredit

 

[Goldfish62]

Erm, no - TUPE may apply at much shorter notice (e.g. when a firm goes under and is bought out), and the rules do not allow employers to sidestep obligations by not providing data. @richard13 was also badly wrong in stating that transferees (not new employees)must be interviewed and treated as new - the point of TUPE is that it provides continuity of employment when a job moves from one employer to another.

It would be interesting to know what processes a number of the organisations in this mess followed, and what the outcomes were. From what can be seen, all emerge with discredit

The company in question has not gone under or is being bought out (did I really have to state this?) and I did not state that the rules allow employers to sidestep obligations by not providing data, so as far as I'm concerned my post was correct.

 

[35B]

The company in question has not gone under or is being bought out (did I really have to state this?) and I did not state that the rules allow employers to sidestep obligations by not providing data, so as far as I'm concerned my post was correct.

It was incorrect because the regulations don't provide a minimum notification period, and they don't make provision of data a test for whether the obligations apply. They also put a lot of weight on the role of the employee, not the employer(s).

Having been involved in negotiations about whether TUPE applies, I know from experience that there are ways to sidestep whether TUPE applies, but they are to do with the nature of the roles, not the nature of either original or proposed new employer.

The reference to going under and being bought out was an example of where a specific deadline might not apply, not a statement of what has happened here.

 

[TheGrandWazoo]

Or they didn't want to get involved in a legal battle they didn't have to be involved in.

Yeah absolutely - that’s what I was clumsily alluding to

 

[richard13]

It appears fairly simple. City Transport Group only gave a month's notice or thereabouts and so Nexus could not do a full re-tender as that takes longer than that - rules of tender. So Nexus could only issue an emergency temporary contract for which TUPE never applies.

TUPE has timescales and procedures for both sides, which also have to be in the offer to tender. The new employer still has to do due diligence in checking that the drivers actually have a valid driving licence and CPC certificate and what are the expiry dates before employment starts, along with checking on things like legal status to work in the UK and correct personal data. The drivers still have to have an induction into Go North East's procedures, work rotas, ... and accept that the place of work has changed. It is not simple; you don't just turn up.

No legal battle had to be avoided - TUPE never applied and the process was never started - TUPE requires the new employer to be given a minimum of 28 days notice with whatever details; not turn up on the day.

 

[35B]

It appears fairly simple. City Transport Group only gave a month's notice or thereabouts and so Nexus could not do a full re-tender as that takes longer than that - rules of tender. So Nexus could only issue an emergency temporary contract for which TUPE never applies.

TUPE has timescales and procedures for both sides, which also have to be in the offer to tender. The new employer still has to do due diligence in checking that the drivers actually have a valid driving licence and CPC certificate and what are the expiry dates before employment starts, along with checking on things like legal status to work in the UK and correct personal data. The drivers still have to have an induction into Go North East's procedures, work rotas, ... and accept that the place of work has changed. It is not simple; you don't just turn up.

No legal battle had to be avoided - TUPE never applied and the process was never started - TUPE requires the new employer to be given a minimum of 28 days notice with whatever details; not turn up on the day.

This is a fundamental misunderstanding of the principles underlying TUPE. It applies when there is a transfer of employees, subject to conditions that relate to the work of the employees. If there is an "organised grouping of employees", TUPE applies irrespective of whether the transfer is intended to be short term or long term. The saying is that the devil is in the detail, and there is a lot of detail involved in TUPE - and therefore a lot of devils.

Whether the rules of tender make it impractical to handle in the short term when a public contract fails is a problem for the public authority (Nexus in this case) to manage with the companies they contract with. Lawyers have ways of addressing that risk (outsourcing contracts can have dozens of pages devoted to employee transfer and TUPE indemnities). But if they're not present, TUPE regulations still apply and the employees remain entitled to their protections under the law - you may not intend it, but the implication of your description is that employee rights are wholly dependent on whether the employer has behaved correctly, and cease when the employer breaks the rules.

You raise a number of important procedural points which are generally good practice (bearing in mind that transferees are not new employees but continuing in their old job with a new employer). They're all good practice, and I've practical experience of most of them. But they are about how the law is to be implemented and don't restrict the law.

I suggest a read of the ACAS guidance for a beginner's guide - https://www.acas.org.uk/tupe/advice-for-employers-and-employees.

 

[Deerfold]

It appears fairly simple. City Transport Group only gave a month's notice or thereabouts and so Nexus could not do a full re-tender as that takes longer than that - rules of tender. So Nexus could only issue an emergency temporary contract for which TUPE never applies.

TUPE is rarely simple.

No legal battle had to be avoided - TUPE never applied and the process was never started - TUPE requires the new employer to be given a minimum of 28 days notice with whatever details; not turn up on the day.

That can't be the case or it'd be simple to deny workers their rights under TUPE by just not doing the paperwork.

 

[Goldfish62]

It was incorrect because the regulations don't provide a minimum notification period, and they don't make provision of data a test for whether the obligations apply. They also put a lot of weight on the role of the employee, not the employer(s).

Having been involved in negotiations about whether TUPE applies, I know from experience that there are ways to sidestep whether TUPE applies, but they are to do with the nature of the roles, not the nature of either original or proposed new employer.

The reference to going under and being bought out was an example of where a specific deadline might not apply, not a statement of what has happened here.

From the ACAS website:

When the old employer must provide information​

The old employer must give employee liability information to the new employer at least 28 days before the transfer date. But it's a good idea to provide this information as early as possible.

The information must be accurate, up to date and provided in a secure way.

Employee liability information - TUPE - Acas

What information an employer must provide about employees who are transferring under TUPE.

www.acas.org.uk

So quite clearly there is a minimum 28 days notice from employer to employer by which time required data that must be provided for each in-scope employee.

I never said that data was a test of whether TUPE applies. It feels as if my comments are being misrepresented, and I don't understand why. Maybe some of my phraseology could be clearer, but it should be pretty clear what I mean unless of course pedantry is the order of the day. It all distracts from the central question of who's at fault in this case.

Anyway, I'm ducking out of this now.