How to escape Tupe traumas

IT professionals may be shocked when they first hear they are being outsourced, but if they know their rights they shouldn't lose...

IT professionals may be shocked when they first hear they are being outsourced, but if they know their rights they shouldn't lose out. Roisin Woolnough explains

It is one thing to decide to leave your current employer and move to another company. It is quite another when your employer makes that decision for you. When this happens, people naturally feel shocked, vulnerable and concerned that their job will change - or worse still, that they will soon be out of a job.

Pauline Powell, service-desk team leader on the DVLA contract at Fujitsu, says it makes some people feel like a disposable commodity.

"I had been working for the AA for three years when the IT team was suddenly called for a meeting to be told the AA was outsourcing its IT services," says Powell. "It was a bit of a bombshell. Also, it was a done deal by the time we heard about it. I think companies could take more care not to make you feel like a laptop or asset to be sold on."

The main concern for individuals when the news breaks, is that their job and the way they work are about to change dramatically. However, the Transfer of Undertakings (Protection of Employment) legislation, commonly called Tupe, exists to ensure this does not happen. Tupe is a legally binding guarantee that employees' contractual terms and conditions will remain intact when they move to their new employers.

"The primary purpose of Tupe is to safeguard employees when there is a transfer," says Peter Skyte, national secretary for Amicus, the IT professionals' union. "Outsourcing of IT departments is a classic example of when it would be used."

Under Tupe, the new employers have to respect employment terms such as salary, hours, overtime allowances, redundancy packages, holiday entitlements, union recognition and so on. And not just for a month or two. "Tupe is for life," says Skyte. Employees are fully entitled to bring a case of unfair dismissal against a company should it not respect Tupe.

What the legislation does not cover is non-contractual elements - namely, pensions. However, Skyte says the union has been able to negotiate pension transfers on some occasions. He says it is imperative that IT professionals involve their union as soon as it is made public that a transfer is planned. "The best way of safeguarding job security, terms and conditions is to get the unions involved at the early stages," he says.

Employers are obliged, under Tupe, to inform and consult staff about the proposed transfer, either by talking to the employees concerned, or to a staff or union representative.

Tom Roberts, new business HR manager at Fujitsu, a company that has been involved in more than 6,000 Tupe moves, says that consultation period is very important. "Employees need to gather as much information as possible about what is going on," he says. "It is important to take an active role."

Powell says that once the AA had informed the IT department about the impending move, Fujitsu - or ICL, as it was then - was on hand to discuss the practicalities. "They came in and talked to us as a group and individually. Everyone panicked at first, but in the end the transfer was quite seamless and I think they handled bringing us in well."

The original AA IT department remained as a unit, with the same job roles and managers. Powell has since been promoted to a new post, but has retained those AA terms and conditions that she wanted to keep.

"The managers have been very accommodating and excellent about respecting Tupe," says Powell. "I still have some of my AA terms and conditions embedded in my contract, even though I have moved on to a new contract with Fujitsu. I have been able to cut and paste a bit about what conditions I wanted and I have been able to keep my 30-hour working week, for example. So I would say Tupe has worked well for me."

Not everyone is so lucky. Skyte says some firms attempt to trample on Tupe. "We had a case when a company was trying to get away from its Tupe obligations and was trying to refuse to recognise the union. But we overcame that."

Computer Weekly reported recently on the case of networking company Lucent, which transferred an outsourcing contract from Atos Origin to Compaq (now part of Hewlett-Packard) and left 60 IT support staff without jobs or any redundancy deals.

As more and more acquisition, merger and outsourcing deals take place in the IT sector, IT professionals would be wise to gen up on what Tupe means for them.

Roberts thinks IT professionals need to be aware of the increased likelihood that they will someday be outsourced and to understand the implications of what that would mean.

"As IT has become a commodity product, outsourcing has become much more prevalent in IT," says Roberts. "Employees can be vulnerable in these situations, but it can also be an opportunity. IT is core to our business, so if people transfer to us, there are more opportunities for them to develop their role and receive training."

As legislation exists to protect employee rights in the event of a transfer, the shock factor of finding out you are being outsourced can often be the worst part. If not, the law should be on your side.

What is Tupe?
The Transfer of Undertakings (Protection of Employment) legislation is based on the European Community Acquired Rights Directive. It protects employees' contractual terms and conditions when they are transferred to another company. Typically, this is in the event of an acquisition, merger or outsourcing deal. The new employer is not allowed to alter those original terms and conditions, unless there is a change in circumstances - such as a promotion, when any changes must be agreed between employer and employee.

For more information, go to the Department of Trade & Industry's Web site and enter Tupe under a search.

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