Q&As: TUPE/T&Cs

The Transfer of Undertakings (Protection of Employment) Regulations (2006) – “TUPE” – is legislation that protects the rights of employees who are affected by the transfer of a business or undertaking (a body of work) from one employer to another, or where there is a service provision change. TUPE aims to ensure that the transfer does not have any detrimental effect upon the employment situation for staff employed by the business or undertaking being transferred, so staff transfer to the new organisation on the same terms and conditions.

Viapath will need to attract and retain the best scientists and other staff to deliver its strategic aim to be the leading pathology services provider in the UK. With this in mind Viapath is reviewing its employment offer and any future changes in employment terms and conditions will be improvements that are in furtherance of this objective. Employees on AfC terms and conditions will have the option to transfer to Viapath terms but there will be no unilateral change to terms and conditions.

TUPE protects all contractual employment terms and conditions, except pensions. However, RoE transferees’ membership of the NHS Pension Scheme will be maintained as a result of changes in the Scheme regulations, and previous TUPE transferees will continue to be members of their “broadly comparable” pension scheme. All employment policies and procedures that are contractual or contained with the AfC Handbook are covered by TUPE.

The AfC redundancy terms will apply if a transferee is subsequently redundant.

Yes. The AfC maternity policy and pay arrangements will apply if a transferee subsequently takes maternity leave.

Viapath already provides, or will establish, comparable benefits to those currently offered by the Trusts.

All Trust RoE transferees will become part of the Viapath Performance Planning and Review process.

No.The AfC structure will be carried over as at the date of transfer, with the prevailing pay rates. Therefore any future changes to AfC will not be applicable. Transferees will continue to progress up the structure on the existing rates on their anniversary of appointment until they reach the top of their AfC Band.

The AfC structure will be carried over as at the date of transfer, therefore employees at the top of their pay band at the point of transfer would remain at that position and salary.

No. There are no plans to change shifts or hours as a result of the transfer. As now, we will consult with staff in future with regard to any proposed changes as the need arises.

In the event that work performed by Viapath is at some future point transferred to the NHS or any other independent provider company, the employees that are involved in the performance and delivery of the services in question would transfer to the new provider under the provisions of the TUPE Regulations.

If you refuse to transfer you must inform the Trust or Viapath of your refusal. Your refusal would result in the termination of your employment contract, as it would amount to a resignation which means you would not be entitled to any compensation payment.

If you TUPE transfer and are subsequently promoted, this would be on Viapath terms and conditions, which would be attractive and fully reflect the increase in seniority and accountability.

No. If former Trust employees that TUPE transfer to Viapath subsequently are promoted on Viapath terms & conditions their NHS Pension Scheme membership will continue.

Staff consultation will be undertaken in consultation with the Trusts’ Organisational Change policies.

The extension of NHS terms and conditions to existing employees of Viapath is not an option.

All employees (whether full or part-time, temporary or permanent) who work wholly or mainly in connection with the provision of pathology services at the time of the transfer are covered by the TUPE provisions.

Viapath is transferring its contractual obligations to provide pathology services to its Trust customers under the Pathology Services Agreements (“PSA”) to two new wholly owned entities:

• Viapath Analytics
• Viapath Services

This transfer of contractual responsibility is a ‘service provision change’ as a result of which the workforce that is currently engaged in the delivery of the services will also transfer to the new entities. Their transfer will be covered by the provisions of the TUPE Regulations; the ‘trigger’ is the transfer of the service delivery obligations.

No. Any changes to employment terms and conditions following a TUPE transfer are possible only through staff consultation and agreement.

HPA staff initially TUPE transferred from HPA into KCH and were subsequently seconded to GSTS from KCH under the RoE apparatus.  They will now TUPE transfer into Viapath from KCH. Following the transfer to KCH they retained their HPA terms and conditions, and those terms and conditions similarly will transfer with them into Viapath.

No. Viapath does not operate MARS.

Viapath will consult with staff regarding the establishment of a long service award scheme.

Yes. Viapath is investing significantly in staff learning & development through, for example the recent Scientific L&D Funding initiative and will continue to invest in the professional development of its staff going forward. So whilst staff cannot continue to apply for to the Trusts for funding, they will receive financial support from Viapath.

No. The AfC structure will be carried over as at the date of transfer, with the prevailing pay rates. Viapath doesn’t make cost of living increases and instead our approach to reward and pay progression is performance-related.

No. Viapath is an independent provider and is not part of the NHS, so if you subsequently re-join the NHS you will have broken service but you will have continuous membership of the NHS Pension Scheme.

Your NHS continuity of service (for benefits like additional annual leave) will be retained, but your employment continuity of service will start anew from the date you are engaged by the new Trust.

Since Viapath does not operate the AfC framework, promotions would be on Viapath employment terms and conditions, which would be attractive and fully reflect the increase in seniority and accountability.

No, as a refusal to transfer amounts to a resignation.

You need to inform the Trust or Viapath if you are refusing to transfer. Refusal will result in the termination of your employment contract, as it amounts to a resignation which means you would not be entitled to any compensation payment.

No. The TUPE Regulations serve to protect the employment terms and conditions of transferees and therefore there is no dismissal and the transfer is not ‘unfair’ in law.

Yes. Any employee can transfer to Viapath employment terms and conditions if they choose following appropriate discussion and agreement.

Yes, this will be provided.

No. Promotion within Viapath will be on the basis of merit.

Any employee participation plan would be applicable to all Viapath employees.

Consultation will take place with Staff Side and other elected Employee Representatives. In addition everyone affected will be offered one to one consultation meetings with their line manager.

We will ensure regular communication with all affected staff as we go throughout the process.

Yes. We are working closely with our Trust HR colleagues in this respect.

The transfer to Viapath will have no impact on the employees’ employment tenure .

Consistent with Viapath’s One Organisation ambition, the longer term aim is to align as far as possible terms and conditions of employment. The TUPE transfer of staff has no direct bearing on this. 

Yes. TUPE will operate to protect any existing local terms and conditions.

No. In order to be successful the transfer will require the active support of all those in leadership positions. Anyone with concerns in this regard should talk to their line manager in the first instance.

TUPE is applicable when there is a transfer of a business or undertaking (a body of work) from one employer to another, or where there is a service provision change. There will be a service provision change when the pathology service contracts between Viapath and the Trusts transfer to the new Viapath companies. This provides a TUPE opportunity that will apply to everyone regardless of which pension scheme they have membership of.

Yes, TUPE legislation states that all contractual terms and conditions (T&Cs) must remain as is prior to the transfer. NHS employees’ holiday entitlement is governed by Agenda for Change (AfC) and is, therefore, contractual. You will be entitled to any increases that are set out in AfC as at the time of transfer.   

The date of any redundancy calculation for a RoE individual post TUPE transfer would be from the date as stated in his/her Trust contract as their date of continuous reckonable service. 

In the event that a Trust pulls out of the pathology contract, then this will trigger a TUPE transfer of Viapath staff to either the Trust (or an alternative provider, depending on the situation).

No, TUPE protections are not time limited. Any changes to employment terms and conditions following a TUPE transfer are possible only through staff consultation. There are no plans to make any changes to employment terms and conditions and in any event anything we did propose would be subject to formal consultation with you.

The transfer does not require anyone to sign a new contract with Viapath, employees transfer automatically under the protection of TUPE legislation. TUPE legislation is legislation that protects the rights of employees who are affected by the transfer of a business or undertaking (a body of work) from one employer to another, or where there is a service provision change. TUPE aims to ensure that the transfer does not have any detrimental effect upon the employment situation for staff employed by the business or undertaking being transferred. However, if an individual refuses to transfer, as dictated by legislation, their refusal must be viewed as a resignation.

Please refer to the following Government link regarding further information on TUPE: https://www.gov.uk/transfers-takeovers/overview

This question need to be answered in two parts as it is important to make the distinction between 1. Contractual terms and conditions (T&Cs), and 2. Non Contractual T&Cs, policies, procedures and benefits i.e. non contractual elements. 

1. TUPE legislation states that all contractual T&Cs must remain as is prior to a transfer.  T&Cs governed by Agenda for Change (AfC) as at the time of transfer are contractual (e.g. maternity/adoption, holiday, sickness entitlement etc) and as such these would not change. 
2. Viapath is working with the Trusts to agree which non contractual elements (e.g. car parking spaces, nursery care etc) will transfer. These elements will be identified and confirmed during the consultation process.

This question need to be answered in two parts as it is important to make the distinction between 1. Contractual terms and conditions (T&Cs), and 2. Non Contractual T&Cs, policies, procedures and benefits i.e. non contractual elements. 

1. TUPE legislation states that all contractual T&Cs must remain as is prior to a transfer.  T&Cs governed by Agenda for Change (AfC) as at the time of transfer are contractual (e.g. maternity/adoption, holiday, sickness entitlement etc) and as such these would not change. 
2. Viapath is working with the Trusts to agree which non contractual elements (e.g. car parking spaces, nursery care etc) will transfer. These elements will be identified and confirmed during the consultation process.

This question need to be answered in two parts as it is important to make the distinction between 1. Contractual terms and conditions (T&Cs), and 2. Non Contractual T&Cs, policies, procedures and benefits i.e. non contractual elements. 

1. TUPE legislation states that all contractual T&Cs must remain as is prior to a transfer.  T&Cs governed by Agenda for Change (AfC) as at the time of transfer are contractual (e.g. maternity/adoption, holiday, sickness entitlement etc) and as such these would not change. 
2. Viapath is working with the Trusts to agree which non contractual elements (e.g. car parking spaces, nursery care etc) will transfer. These elements will be identified and confirmed during the consultation process.

This question need to be answered in two parts as it is important to make the distinction between 1. Contractual terms and conditions (T&Cs), and 2. Non Contractual T&Cs, policies, procedures and benefits i.e. non contractual elements. 

1. TUPE legislation states that all contractual T&Cs must remain as is prior to a transfer.  T&Cs governed by Agenda for Change (AfC) as at the time of transfer are contractual (e.g. maternity/adoption, holiday, sickness entitlement etc) and as such these would not change. 
2. Viapath is working with the Trusts to agree which non contractual elements (e.g. car parking spaces, nursery care etc) will transfer. These elements will be identified and confirmed during the consultation process.

This question need to be answered in two parts as it is important to make the distinction between 1. Contractual terms and conditions (T&Cs), and 2. Non Contractual T&Cs, policies, procedures and benefits i.e. non contractual elements. 

1. TUPE legislation states that all contractual T&Cs must remain as is prior to a transfer.  T&Cs governed by Agenda for Change (AfC) as at the time of transfer are contractual (e.g. maternity/adoption, holiday, sickness entitlement etc) and as such these would not change. 
2. Viapath is working with the Trusts to agree which non contractual elements (e.g. car parking spaces, nursery care etc) will transfer. These elements will be identified and confirmed during the consultation process.

The date of any redundancy calculation for a RoE individual post TUPE transfer is based on the date as stated in an employee’s Trust contract as their date of aggregated service. This is the same for other similar contractual terms and conditions that depend on length of service/reckonable service.

TUPE protections are not time limited. 

Yes, TUPE legislation states that all contractual terms and conditions (T&Cs) must remain as is prior to the transfer. NHS employees’ holiday entitlement is governed by Agenda for Change (AfC) and is, therefore, contractual. You will be entitled to any increases that are set out in AfC as at the time of transfer.