Transfers within public administration

A reorganisation within a public administration or the transfer of administrative functions between public bodies is not a relevant transfer under TUPE. This means that most transfers within central or local government (as opposed to transfers from the public to the private sector and vice versa) are not covered by TUPE.

Instead, intra-governmental transfers are covered by the Cabinet Office’s Statement of Practice: Staff transfers in the Public Sector (COSOP).

COSOP promises “TUPE equivalent” treatment for affected employees. In Law Society v Secretary of State for Justice and Office for Legal Complaints [2010] EWHC352, COSOP was described as a statement of policy rather than law, meaning that ministers are not bound to apply it. However, the Court confirmed that nevertheless, a failure to take COSOP into account could justify a claim for judicial review.

COSOP was revised in November 2013 to reflect new arrangements for the Fair Deal Pension policy, summarised on page 378. A copy of the updated COSOP can be downloaded at: www.civilservice.gov.uk/about/resources/employment-practice/codes-of-practice.

The COSOP framework applies directly to central government departments and agencies and to the NHS. Other public sector organisations are also expected to follow it. COSOP has the support of the Local Government Association which encourages its application by individual local authorities.

The government has powers under section 38 of the Employment Relations Act 1999 to provide TUPE-like protection to other classes of employee falling outside the scope of the Acquired Rights Directive. These have led to the Transfer of Undertakings (Protection of Employment) (Rent Officer Service) Regulations 1999 (SI 1999/2511) and the Transfer of Undertakings (Protection of Employment) (Transfer of OFCOM) Regulations 2003 (SI 2003/2715).