Will TUPE always be a nightmare for HR?

Mention the word “TUPE” to any HR team and watch their reaction: a pursing of the lips, a deep breath and a sigh as they recall past experiences. However, TUPE is not going away. In fact, with increased outsourcing, mergers, acquisition and competitive tender processes, TUPE transfers are set to rise. Despite this, TUPE appears to be one of those topics that continue to be a major concern and frustration for HR teams and organisations; paralysing organisations in some extreme cases. But why is this and what can we do to ensure TUPE runs more smoothly?

Firstly the obligatory health warning! TUPE transfers can be complex. And any organisation that finds itself in a TUPE situation should seek expert legal advice to ensure they follow the correct procedures. This also means that HR needs to be made aware of any business changes that could trigger TUPE as early as possible to allow adequate time for appropriate planning and potential training. Guidance on which employees fall under the scope of TUPE and which don’t, as well as legal obligations around consultation and contractual rights and benefits, need to be understood at the earliest opportunity.

TUPE is first and foremost a change event

Legal requirements aside, it’s important to remember that TUPE is often triggered as a result of a change event, and whilst the process for both are separate, they do often run in parallel. And as with any change involving people, emotions are likely to run high, resulting in a misunderstanding of TUPE and a blurring of the lines between the TUPE consultation process and broader change activities. From HRs perspective ensuring that employees understand that they are separate processes is an essential first step.

TUPE is rarely the issue

Interestingly at a recent workshop we focused on how organisations can successfully navigate TUPE with London based employment law firm Fox Williams, one area of TUPE that HR professionals deemed to be the most challenging was the TUPE consultation process itself. Many expressed that very quickly the consultation process around TUPE becomes complicated and employees become frustrated with the responses to their questions, or their inability to speak directly with the leadership team. This is often where the psychological contract between employer and employee breaks down and distrust starts to build.

In reality, TUPE itself is, in most cases, rarely the issue. It’s the process surrounding TUPE that gives rise to challenges and, often, a negative, skewed view of the activities surrounding a TUPE transfer. Addressing this situation is relatively straightforward and comes back to change management best practices around communication.

Providing employees with information that clearly explains the TUPE consultation process, timeframes and importantly, checking their understanding is a must. Many will not realise that the consultation process relates solely to the TUPE transfer and not to broader change activities that may be running at the same time. Explaining the types of issues that will be consulted on and explaining the process for raising other, non TUPE relevant questions will help to mitigate many of the complexities and challenges that frequently arise as the process unfolds.

Train employee representatives

Where TUPE applies, organisations have a requirement to consult with employees through elected employee representatives. However, for many taking on this responsibility it will be the first time that they have done so. Helping them to understand their role and the purpose of the consultation process should therefore be at the top of the list of things to address.

Providing training not only helps employee representatives to better understand the TUPE consultation process and their role, it can also help them to more effectively engage with colleagues, manage their expectations of the TUPE consultation process and explain why certain questions are not relevant to the process.

Address fears

Remembering that TUPE is first and foremost a change event helps to contextualise employees’ reactions. The period of uncertainty that surrounds change can be very unsettling as employees start to think about their futures and any potential impact on them.

From HRs’ perspective this can be very difficult to address as there is a natural tendency for impacted employees to view HR with a degree of scepticism and distrust, often simply as they are the ones managing the overall consultation process.

Providing employees with the opportunity to air their concerns and frustrations in a safe and impartial environment can really help to channel peoples’ focus and diffuse potentially heated situations. As well as encouraging individuals to look at things from a different perspective, allowing them to discuss their concerns and fears and develop individual coping strategies to better manage themselves throughout the change process can actually make it a more positive experience for all involved. Importantly, it also provides the business with a feedback mechanism to highlight aspects of the overall change process that may need to be addressed.

TUPE does not need to be difficult. Yes there are legal requirements which have to be followed, however ensuring best practice change principles are employed from the outset and allowing HR teams adequate time to prepare, plan and communicate will prevent it from causing nightmares.