Sunderland 700/701 TUPE dispute

[35B]

From the ACAS website:

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.

The point is that this guidance note is written for a normal situation, and presumes that there is 28 days' notice. A typical outsourcing transition will be between 1 and 6 months, which makes that entirely reasonable. But the regulations are written to cover all possibilities - including an overnight transfer.

I apologise if I've given offence, but there is a simple question of logic here - the emphasis on the 28 days requirement leaves the "what happens when there aren't 28 days" question wide open. Occam's razor says that, if 28 days notice is the test of whether TUPE applies, then failure to do so within 28 days would deprived potentially transferring employees of their rights to continue.

Having spoken at (expensive) length to commercial lawyers specialising in this area, I'm acutely aware that the ACAS guidance is a very limited introduction to a very complicated topic, in which employers (public and private sector alike) are frequently very keen to avoid the costs of obeying the law, and employees risk being left out in the cold.

 

[MotCO]

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.

But how can this work if a company suddenly collapses or has its contracts taken away? When there is an orderly transfer, TUPE processes make sense, but I'm not sure how it can operate in this situation.

The logical thing would be if the old contractor informs the new contractor of the staff wholly involved in the service, and for the temporary operator to use and pay these staff. Any redundancy costs would be picked up in the new permanent tender, and the contract priced to reflect these costs. The old operator should pay any wages outstanding, or if it has gone bust, then the wages would be part of the settlement of creditors (unless it is picked up by any Government schemes). But common sense doesn't always apply.

 

[35B]

But how can this work if a company suddenly collapses or has its contracts taken away? When there is an orderly transfer, TUPE processes make sense, but I'm not sure how it can operate in this situation.

The logical thing would be if the old contractor informs the new contractor of the staff wholly involved in the service, and for the temporary operator to use and pay these staff. Any redundancy costs would be picked up in the new permanent tender, and the contract priced to reflect these costs. The old operator should pay any wages outstanding, or if it has gone bust, then the wages would be part of the settlement of creditors (unless it is picked up by any Government schemes). But common sense doesn't always apply.

The simple answer is that it doesn't, and it gets messy. But that's where principles are important. And the principle here is that if there is a transfer of an organised grouping of employees, then their employment rights are protected and they transfer to the new employer - redundancy doesn't enter into it. The detail of who pays whom in the fallout from a collapse becomes secondary, and is about debt rather than employment.

What isn't visible here are the employment provisions of the contracts the bus operators have with Nexus. I would expect there to be provisions governing what should happen in an enforced or short notice transfer, but the account here suggests strongly that they don't exist, which suggests that Nexus have fallen down on the job.

 

[34D]

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.

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.

You are forgetting that some situations (like apparently this) have a few days and not 28.

The question is likely to be 'was the information provided as soon as practicable' in which case all is fine.

Less than 28 days does NOT negate the employees claim that they are part of an organised grouping.

 

[Starmill]

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

I would say they decided to involve themselves to a degree by cancelling the contract unilaterally, rather than negotiating a termination...

What isn't visible here are the employment provisions of the contracts the bus operators have with Nexus. I would expect there to be provisions governing what should happen in an enforced or short notice transfer, but the account here suggests strongly that they don't exist, which suggests that Nexus have fallen down on the job.

Indeed. They could get this right, or they could avoid unilaterally pulling the plug mid-contract. But as it stands they've decided not to bother with either, it appears.

 

[stevieinselby]

But how can this work if a company suddenly collapses or has its contracts taken away? When there is an orderly transfer, TUPE processes make sense, but I'm not sure how it can operate in this situation.

The logical thing would be if the old contractor informs the new contractor of the staff wholly involved in the service, and for the temporary operator to use and pay these staff. Any redundancy costs would be picked up in the new permanent tender, and the contract priced to reflect these costs. The old operator should pay any wages outstanding, or if it has gone bust, then the wages would be part of the settlement of creditors (unless it is picked up by any Government schemes). But common sense doesn't always apply.

When bus companies have folded and their contracted services have been reallocated to other providers, I have never once heard anyone suggest that TUPE would apply. The new providers have often directly reached out to the former employees of the failed company and invited them to apply for jobs, but it has been very clear that it is an application process and not an automatic enrolment. I realise that it's a slightly different situation here because CTG wasn't insolvent, but it still feels relevant.

 

[Cesarcollie]

When bus companies have folded and their contracted services have been reallocated to other providers, I have never once heard anyone suggest that TUPE would apply. The new providers have often directly reached out to the former employees of the failed company and invited them to apply for jobs, but it has been very clear that it is an application process and not an automatic enrolment. I realise that it's a slightly different situation here because CTG wasn't insolvent, but it still feels relevant.

But don’t forget that it depends on the detail. If the failed company provides three routes, each requiring two drivers, but the six drivers are all on one rota, they will only spend 33% of their time on any one route. If after the failure each route goes to a different operator, none of the drivers will automatically qualify for TUPE as the ‘more than 50%’ threshold isn’t met. (This is a simplistic example to illustrate the point, but as others have noted, TUPE is rarely simple!).

 

[Dwarfer1979]

When bus companies have folded and their contracted services have been reallocated to other providers, I have never once heard anyone suggest that TUPE would apply. The new providers have often directly reached out to the former employees of the failed company and invited them to apply for jobs, but it has been very clear that it is an application process and not an automatic enrolment. I realise that it's a slightly different situation here because CTG wasn't insolvent, but it still feels relevant.

I think that a company failure is different to a contract transfer even if the latter is done with little notice due to poor performance by the previous operator. In the case of company failure there is a break in service, even if only 1 day for an on the ball tendering authority, which I would think means there is nothing to transfer though it can be complicated by a slow failure where the council gets some pre-warning of a problem so they can have replacement contracts ready (though even where that has happened you tend to find the operator fails in the middle of one day and the new contract doesn't kick in until the following day meaning there is still several hours or no service). Conversely if the service is re-assigned or retendered, no matter how short the notice, there isn't the break in service and so it would seem more related to a Transfer of Undertakings. As others have said TUPE is complicated and only a qualified employment lawyer, which I suspect none of us are, could give remotely definitive responses to all the possible different scenarios that could be faced.

 

[35B]

I think that a company failure is different to a contract transfer even if the latter is done with little notice due to poor performance by the previous operator. In the case of company failure there is a break in service, even if only 1 day for an on the ball tendering authority, which I would think means there is nothing to transfer though it can be complicated by a slow failure where the council gets some pre-warning of a problem so they can have replacement contracts ready (though even where that has happened you tend to find the operator fails in the middle of one day and the new contract doesn't kick in until the following day meaning there is still several hours or no service). Conversely if the service is re-assigned or retendered, no matter how short the notice, there isn't the break in service and so it would seem more related to a Transfer of Undertakings. As others have said TUPE is complicated and only a qualified employment lawyer, which I suspect none of us are, could give remotely definitive responses to all the possible different scenarios that could be faced.

This is the key point - the scope of work of the employees was moved, rather that stopping and then (quickly) restarting.

 

[AndrewP]

I have been involved with the flawed legislation that is TUPE and this seems very complex and the issue might be that the replacement contract was let by the contracting authority on the basis that it did not apply and the new / interim supplier bid and delivered on that basis.

This really puts the employees in an awkward position and although legal advice is often advised, this is not always straightforward as it's not cheap meaning the decision to take it is not simple. This is where unions come into their own (or should).

This is an awkward situation but someone, arguably rightly, prioritised keeping the service going

 

[35B]

I have been involved with the flawed legislation that is TUPE and this seems very complex and the issue might be that the replacement contract was let by the contracting authority on the basis that it did not apply and the new / interim supplier bid and delivered on that basis.

This really puts the employees in an awkward position and although legal advice is often advised, this is not always straightforward as it's not cheap meaning the decision to take it is not simple. This is where unions come into their own (or should).

This is an awkward situation but someone, arguably rightly, prioritised keeping the service going

I agree with both the description of TUPE as "flawed" and the conclusion about keeping the service going. However, when negotiating contracts involving a change of service, lawyers have always been at pains to advise that neither customer nor supplier can rely on "TUPE won't apply", and always need to prepare themselves (probably with suitable indemnity clauses) for the possibility that it will and the affected staff will take legal action over their positions. That preparation will include provisions around the idea of a "successor supplier", recognising that the customer organisation may well cause the service to be transferred directly from one supplier to another.

I'm willing to bet that Nexus didn't do this, and especially didn't consider what might happen if they had to take back a contract with a small supplier that might be unable to absorb the workload into its other operations - or unwilling to stand up to its legal liabilities if redundancies were required.

 

[MotCO]

But caught up in the crossfire are the staff who may still be owed wages and possibly redundancy pay, and I assume no end in sight to resolve this.

 

[35B]

But caught up in the crossfire are the staff who may still be owed wages and possibly redundancy pay, and I assume no end in sight to resolve this.

Precisely.

 

[AndrewP]

I agree with both the description of TUPE as "flawed" and the conclusion about keeping the service going. However, when negotiating contracts involving a change of service, lawyers have always been at pains to advise that neither customer nor supplier can rely on "TUPE won't apply", and always need to prepare themselves (probably with suitable indemnity clauses) for the possibility that it will and the affected staff will take legal action over their positions. That preparation will include provisions around the idea of a "successor supplier", recognising that the customer organisation may well cause the service to be transferred directly from one supplier to another.

I'm willing to bet that Nexus didn't do this, and especially didn't consider what might happen if they had to take back a contract with a small supplier that might be unable to absorb the workload into its other operations - or unwilling to stand up to its legal liabilities if redundancies were required.

I should have added that my comments were based on experience elsewhere (try applying TUPE and it's equivalents on a pan-European basis - that's fun!).

I have seen exactly the scenarios that you have described and you are so right about never assuming that "TUPE wont apply". It's a risk with any contract change / renewal and that risk has to be allocated and managed (normally with a cost attached)

 

[richard13]

TUPE seems complex, but reading part of the .gov intro, I noticed a couple of things.

There are 2 distinct situations, transferring a business and transferring a contract. Transferring a whole business includes debts like arrears of pay, but a contract transfer does not.

The current business has to state up front, whether they expect TUPE to apply so that any new supplier/ purchaser can bid accordingly and collect data and start the formal welcome process. Staff cannot just turn up to the new employer on the first day of a new contract and expect employment when the new contractor will have already allocated / employed staff for the new work.

TUPE never applies to short term contracts, but what is short term?

Bus tendering is normally a fixed process and in Nexus's case it is outsourced via a third party. It will have fixed minimum timescales. Short notice contracts are presumably done manually with likely candidates asked personally - email / phone? and thus only short term so others can apply formally via the standard process. School buses sometimes have to be replaced between morning run and afternoon pick up with a lot of panic, with short term and later proper contracts following. TUPE is a process requiring a formal transfer of information and so can never be instant, but redundancy and re-employment can be pretty quick.

When Yellow Bus went bust in Bournemouth, Morebus restarted their routes in 36 hours with over a 100 Yellow bus drivers. There was no TUPE. It was I think actually more benifitial to accept government redundancy and start again with a higher wage / benifits and a welcome bonus.

I get the impression that City Transport Group did not understand TUPE, but it sounded like a way to get out of paying wages and redundancy and the suggestion to the drivers kept them happy until it failed. That matches the image I am getting about CTG. The drivers were plain misled.

 

[robertclark125]

The post above asks what is short term? Given my employer, wh Smith, and my previous employer, focus diy, had a probation period of 13 weeks, I'd say short term could be a maximum of 13 weeks.

 

[Deerfold]

The post above asks what is short term? Given my employer, wh Smith, and my previous employer, focus diy, had a probation period of 13 weeks, I'd say short term could be a maximum of 13 weeks.

6 months isn't an unusual probation period.

 

[Teapot42]

6 months isn't an unusual probation period.

Every job I've had was 6 months, not sure if it differs for hourly paid roles - I've always been salaried.

Probably not strictly speaking probation, but many UK Universities 'game' the system by having staff on a series of rolling temporary contracts up until the point (three years I believe) where they have to be made permanent.

 

[35B]

Every job I've had was 6 months, not sure if it differs for hourly paid roles - I've always been salaried.

Probably not strictly speaking probation, but many UK Universities 'game' the system by having staff on a series of rolling temporary contracts up until the point (three years I believe) where they have to be made permanent.

The question of "short term" is a red herring - the roles transfer when the work transfers if the individual is part of an "organised grouping".

 

[Tetchytyke]

The current business has to state up front, whether they expect TUPE to apply so that any new supplier/ purchaser can bid accordingly and collect data and start the formal welcome process. Staff cannot just turn up to the new employer on the first day of a new contract and expect employment when the new contractor will have already allocated / employed staff for the new work.

If TUPE applies- and what either employer says doesn’t actually change whether it applies or not- then employees can turn up and expect to remain in employment. That’s the whole point of TUPE- their employment transfers.

It is not uncommon for new contractors to attempt to argue that TUPE doesn’t apply, particularly where the outgoing contractor offers better pay and they don’t want to match it. It’s also not uncommon for the outgoing contractor to also try and argue that TUPE doesn’t apply where they want to keep their staff.

When Yellow Bus went bust in Bournemouth, Morebus restarted their routes in 36 hours with over a 100 Yellow bus drivers. There was no TUPE.

That is because there was no transfer of undertaking. Morebus didn’t acquire any of the assets of Yellow Buses and nor did they acquire the contracts. They simply registered new commercial operations on the routes that Yellow Buses had been operating, and invited Yellow Buses drivers to come and work for them.

If Morebus had bought the assets of Yellow Buses then TUPE probably would have applied. Whether they’d have been on the hook for unpaid wages would depend on whether the transfer took place before or after insolvency; if the transfer happens before the insolvency event then the new employer is on the hook, if it happens after the insolvency event then the old employer is liable. City Transport Group are not insolvent (yet!).

== Doublepost prevention - post automatically merged: 4 Oct 2026 ==

When bus companies have folded and their contracted services have been reallocated to other providers, I have never once heard anyone suggest that TUPE would apply.

It depends whether there is a transfer of undertaking and that is a very complex area of law when insolvency or contract defaults are involved. If there isn’t continuity then TUPE often won’t apply. It also won’t apply if there isn’t a discrete group of employees to transfer.

If bus operator A goes bust and bus operator B buys the assets from the administrator/insolvency practitioner then TUPE would likely apply. If bus operator A goes bust and the contracts are re-tendered after a short gap of a few weeks to operators C, D, and E then it likely won’t. It gets very messy where there isn’t a gap (e.g. where the replacement is already lined up and ready to go) or where there isn’t a discrete group of drivers (e.g. one contract gets divvied up across two or three new operators).

The law is very complicated and it in a decent proportion of cases the incoming employer will not have any desire for TUPE to apply.

 

[34D]

Some case-law that may be of interest (all of these cases are from a level of judicature that can create legal precedent):

Tendered service replaced with commercially registered service - no TUPE transfer CT Plus v Black https://www.bailii.org/cgi-bin/form.../2016/0035_16_0308.html&query=(Ct)+AND+(plus)

Security staff who previously acted as the Security for an office complex whilst it was an open, functioning office did not transfer to be Security staff after closure, when the contract to guard a redundant site waiting for demolition was held to be different (it is hard to think of a bus industry parallel to this) Horizon Security Services Limited v Ndeze https://assets.publishing.service.g...ransfer_of_Undertakings_UKEAT_0071_14_JOJ.pdf

Coach to transport children to a temporary school while their own school was being rebuilt - no TUPE transfer as the act of children going to a temporary school was to cease Liddell's Coaches v Cook https://www.bailii.org/uk/cases/UKEAT/2012/0025_12_0910.html

TUPE transfer can span a gap, subject to specifics (apparently GNE sent a letter to all other bus operators who bidded, telling them that they will be telling the employment tribunal that their temporary provision is different, and that the TUPE transfer is from City to the new long term operator) Mustafa & Anor v Trek Highways Services Ltd & Anor [2016] https://www.bailii.org/uk/cases/UKEAT/2016/0063_15_2901.html

Can anyone else find any other cases that are relevant?

None of these are exactly the same circumstances as here, though. If GNEs temporary contract was to take the Sunderland University students to a temporary campus then it could fit the Liddells case. But it doesn't. Or if they decided to operate it commercially it would fit the CT Plus case. But it doesn't.

Same work, same bus routes, same client (Nexus) under the contract with City, the contract with GNE, and the contract with the new operator.

It would be quite the fairytale ending if the small operator was actually correct. I am sure that the employees would be happier with an award against the large company rather than either of the small ones.

 

[MotCO]

Some case-law that may be of interest (all of these cases are from a level of judicature that can create legal precedent):

Tendered service replaced with commercially registered service - no TUPE transfer CT Plus v Black https://www.bailii.org/cgi-bin/form.../2016/0035_16_0308.html&query=(Ct)+AND+(plus)

Security staff who previously acted as the Security for an office complex whilst it was an open, functioning office did not transfer to be Security staff after closure, when the contract to guard a redundant site waiting for demolition was held to be different (it is hard to think of a bus industry parallel to this) Horizon Security Services Limited v Ndeze https://assets.publishing.service.g...ransfer_of_Undertakings_UKEAT_0071_14_JOJ.pdf

Coach to transport children to a temporary school while their own school was being rebuilt - no TUPE transfer as the act of children going to a temporary school was to cease Liddell's Coaches v Cook https://www.bailii.org/uk/cases/UKEAT/2012/0025_12_0910.html

TUPE transfer can span a gap, subject to specifics (apparently GNE sent a letter to all other bus operators who bidded, telling them that they will be telling the employment tribunal that their temporary provision is different, and that the TUPE transfer is from City to the new long term operator) Mustafa & Anor v Trek Highways Services Ltd & Anor [2016] https://www.bailii.org/uk/cases/UKEAT/2016/0063_15_2901.html

Can anyone else find any other cases that are relevant?

None of these are exactly the same circumstances as here, though. If GNEs temporary contract was to take the Sunderland University students to a temporary campus then it could fit the Liddells case. But it doesn't. Or if they decided to operate it commercially it would fit the CT Plus case. But it doesn't.

Same work, same bus routes, same client (Nexus) under the contract with City, the contract with GNE, and the contract with the new operator.

It would be quite the fairytale ending if the small operator was actually correct. I am sure that the employees would be happier with an award against the large company rather than either of the small ones.

The temporary nature of the interim contract to GNE appears to be similar to both the Liddell's and Mustafa cases, which implies that either TUPE will not apply, or that it will be picked up by the permanent contractor. In either case, it is not GNE's responsibility, but whether it is City's or the new permanent contractor is up for discussion.r

 

[Bristol LHS]

City took over the contract from Go Ahead in September 25. Presumably no staff TUPE’d from Go Anead to City because the Go Anead drivers were part of a mixed pool of drivers at Deptford. If this was City’s only regular service work, and the drivers were genuinely recruited solely for that work, presumably they’d be on fixed-term contracts for the length of the 700/701 tender…? That would be how a business in any other industry would recruit dedicated staff for a specific contract with a fixed end date. Obviously the work ended sooner than expected, but I would have thought the nature of the contract (permanent or fixed term) would be a good clue to what the intentions were.

 

[richard13]

This has not been reported here, I think.

21st July 2026


JH Coaches Begins Operating Sunderland Connect Services 700 & 701 on Behalf of Nexus

https://jhcoaches.com/news-and-medi...t-operate-sunderland-connect-services-700-701

So GoNorthEast only operated the 700/1 for 11 or 12 weeks. TUPE does not require a company to take on full time staff with their existing holiday, sick and redundancy liabilities, just for around 3 months worth of work. It is explicitly excluded.

It was only ever a transfer of a contract and so TUPE would never include back pay, etc.
The drivers apparently only arrived at GNE after the first journeys of the contract had started with other staff. TUPE has to be done in advance so that the transferred staff can work from the real start of the new contract, already knowing things like sign on procedures at a different depot and be known to the supervision, having had their driving licence, etc checked.

The drivers should have been made redundant and all back pay honoured, but could City Transport afford that?
The driver's TUPE letter was ...?

 

[35B]

This has not been reported here, I think.

https://jhcoaches.com/news-and-medi...t-operate-sunderland-connect-services-700-701

So GoNorthEast only operated the 700/1 for 11 or 12 weeks. TUPE does not require a company to take on full time staff with their existing holiday, sick and redundancy liabilities, just for around 3 months worth of work. It is explicitly excluded.

It was only ever a transfer of a contract and so TUPE would never include back pay, etc.
The drivers apparently only arrived at GNE after the first journeys of the contract had started with other staff. TUPE has to be done in advance so that the transferred staff can work from the real start of the new contract, already knowing things like sign on procedures at a different depot and be known to the supervision, having had their driving licence, etc checked.

The drivers should have been made redundant and all back pay honoured, but could City Transport afford that?
The driver's TUPE letter was ...?

I agree with you about City Transport's duties here, but the reasons why the drivers have struggled are not reasons why TUPE does not apply. If the work goes from company A to company B (short term) and then to company C, it merely means that there are potentially two TUPE transfers involved. The regulations, with their flaws, are for the benefit and protection of employees, not employers.

 

[richard13]

I agree with you about City Transport's duties here, but the reasons why the drivers have struggled are not reasons why TUPE does not apply. If the work goes from company A to company B (short term) and then to company C, it merely means that there are potentially two TUPE transfers involved. The regulations, with their flaws, are for the benefit and protection of employees, not employers.

TUPE regs make no provision for that, partly because TUPE is not compulsory on employees and so staff cannot be forced to take up either transfer, let alone both. It would lead to very messy issues and all sorts of unspecified liabilities and costs.

TUPE regulations specifically state that it does not apply to short term contracts, whatever short is defined as. In this case, short notice = short fill-in contract.

When the transfer happens at the end of a long term contract then TUPE can be requested and an orderly transfer process put in place for those that want it. Other wise drivers can accept redundancy and take up other employment the following day at their own arrangement. Drivers can use it as a stimulus to change their lives.
For many small companies in financial difficulties, paying redundancy and back pay, holiday pay, ... means bankruptcy and everyone out of work.

Our domestic rubbish collection has just changed contractors, known about years ahead of time, and the main change is the label on the vehicles. Staff and vehicles all moved over.

TUPE may be for the protection of employees, but the employers have to have rights as well as responsibilities. There is no point in using TUPE and it forcing the new company out of business. TUPE done in an orderly way up front so that the new employer can assess the liabilities and costs involved before bidding for the work, is an absolutely necessary part of the bidding process.

 

[35B]

TUPE regs make no provision for that, partly because TUPE is not compulsory on employees and so staff cannot be forced to take up either transfer, let alone both. It would lead to very messy issues and all sorts of unspecified liabilities and costs.

TUPE regulations specifically state that it does not apply to short term contracts, whatever short is defined as. In this case, short notice = short fill-in contract.

When the transfer happens at the end of a long term contract then TUPE can be requested and an orderly transfer process put in place for those that want it. Other wise drivers can accept redundancy and take up other employment the following day at their own arrangement. Drivers can use it as a stimulus to change their lives.
For many small companies in financial difficulties, paying redundancy and back pay, holiday pay, ... means bankruptcy and everyone out of work.

Our domestic rubbish collection has just changed contractors, known about years ahead of time, and the main change is the label on the vehicles. Staff and vehicles all moved over.

TUPE may be for the protection of employees, but the employers have to have rights as well as responsibilities. There is no point in using TUPE and it forcing the new company out of business. TUPE done in an orderly way up front so that the new employer can assess the liabilities and costs involved before bidding for the work, is an absolutely necessary part of the bidding process.

I'm not sure what "unspecified liabilities and costs" you're referring to. The essence of TUPE is really simple - staff transfer without ever going near a redundancy process, retaining their continuity of service and contractual terms. The employer taking over the activity has to assume that they will take on the existing staff, and the staff get the opportunity to protect their current position.

If they're in scope and don't wish to transfer, they can either try to find another role with their existing employer or resign - it's not an optional process.

I write from experience of being in scope for TUPE and having to find a new role with my employer, as well as active involvement in both commercial negotiations and as part of employee consultation.

 

[richard13]

If they're in scope and don't wish to transfer, they can either try to find another role with their existing employer or resign - it's not an optional process.

That is what was meant - you don't have to move to the new employer, you can do your own thing instead, but you do have to do something.

TUPE (for contracts) in many ways for the employee is simple, but for the new employer it is not simple. They need to understand how many people want to transfer and what contract terms each of them is coming with. They may well not all be on the same contract. Then what is the liability for holiday pay, sick pay, pensions, etc and that may be different for each employee due to length of service, historical contracts, or whatever. Each of these has a cost and/or a risk and the new employer has to discover these costs and factor them into the price they offer for the contract. It is not simple. Large companies can absorb some variations, but small companies can't.

At short notice the new employer simply can't do this analysis and so it is not required. On a short term contract, the new employer need only offer fixed term employment for the length of the contract and not permanent employment and so the current contracts just don't work. The future transfer to employer C may be likely, but until it is signed it could be changed or cancelled if someone comes up with alternative solutions or no one bids for the work at a reasonable price. No one can assume it will happen, because sometimes in real life, it doesn't.

In this case a big employer can take on extra limited work and cover the temporary needs through existing vehicles and staff it with spares, overtime, agency or whatever. It's easy and takes no real planning. The extras get largely lost in the day to day variations.

 

[35B]

That is what was meant - you don't have to move to the new employer, you can do your own thing instead, but you do have to do something.

TUPE (for contracts) in many ways for the employee is simple, but for the new employer it is not simple. They need to understand how many people want to transfer and what contract terms each of them is coming with. They may well not all be on the same contract. Then what is the liability for holiday pay, sick pay, pensions, etc and that may be different for each employee due to length of service, historical contracts, or whatever. Each of these has a cost and/or a risk and the new employer has to discover these costs and factor them into the price they offer for the contract. It is not simple. Large companies can absorb some variations, but small companies can't.

At short notice the new employer simply can't do this analysis and so it is not required. On a short term contract, the new employer need only offer fixed term employment for the length of the contract and not permanent employment and so the current contracts just don't work. The future transfer to employer C may be likely, but until it is signed it could be changed or cancelled if someone comes up with alternative solutions or no one bids for the work at a reasonable price. No one can assume it will happen, because sometimes in real life, it doesn't.

In this case a big employer can take on extra limited work and cover the temporary needs through existing vehicles and staff it with spares, overtime, agency or whatever. It's easy and takes no real planning. The extras get largely lost in the day to day variations.

It's the bit I've highlighted that is simply wrong. There may be other reasons why TUPE doesn't apply, but the application is irrespective of notification timeline. In cases like these, where a public body is letting the work on a contract basis, that risk can be handled through the contract, and with indemnities - any competent employment lawyer will have plenty of standard clauses on their shelf.

Otherwise, look at the implication. An organisation lets a contract, to which TUPE applies. It pulls the plug on the contract, hands it to an organisation in the interim, and then relets it. If TUPE doesn't apply in those circumstances, then that means that the organisation letting the contract sidesteps all their liabilities.

That's also relevant where you also mention the new employer needing to discover the cost of the transferring employees. When the contract is let, the organisation will provide data to allow bidders to estimate the costs of employment. While there may be a process to agree changes in costings if there are material differences, that isn't necessarily included in the contract and handling that is part of the risk management when bidding. The numbers can be very large - in some contracts I've had to work with, there have been former public sector employees with "Beckman rights" which are almost prohibitively expensive to retain.

Ultimately, you're looking at this as though its about hiring workers when the purpose and nature of the legislation is fundamentally different - it is specifically there to protect the pre-existing rights of employees when they transfer

 

[em81]

I was once transferred during TUPE in the middle of the month. On the next pay day we got two payslips and two separate payments into our bank accounts - one from the old company and one from the new. The only issue was HMRC issued tax codes based on the role at the new business being a second job. The tax overpayment was refunded, but it was a bit of a pain.

Why wouldn't it work the same way for the drivers?