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Objecting to a transfer
[ch 12: page 462]The law allows employees to object to a transfer before it takes place, even if they have no good reason. This is because the law says that nobody can be forced to work for someone else against their will. However, simply objecting to a transfer without advice from your union, is rarely a good idea. Taking this step has negative consequences for your employment rights. Specifically, where an employee objects:
• the employment contract will terminate automatically, but the employee will not be treated as having been dismissed; and
• there will be no right to claim either unfair dismissal rights or a redundancy payment (regulation 4(7) and 4(8), TUPE).
After the objection, “the transferor may re-engage the employee on whatever terms they agree” (BIS TUPE guidance, 2014).
“Objecting” to the transfer is one step in the “Retention of Employment” model that can be used, by agreement between the employer and the union, to enable employees to retain their existing terms and conditions after a transfer.
The Retention of Employment Model
One mechanism used successfully in the past in the NHS, local government, and the education sector to enable employees to remain employed by their employer on their existing contract terms (including pensions) even though they go to work for a different organisation after the transfer date, is the Retention of Employment Model (ROEM). The model was developed in response to campaigning by UNISON to preserve NHS staff terms and conditions.
This approach requires joint cooperation, high levels of trust between the employer and the union, and careful legal advice. Every step must be followed strictly to avoid employment being transferred automatically to a new employer by operation of law, and to avoid risks to employees’ contract terms. The ROEM model involves the following steps:
• the parties follow all the normal steps in relation to a TUPE transfer, including as to information and consultation;
• a date is fixed for the transfer;
• immediately before the transfer, the employees formally “object” to the transfer (see page 462);
• immediately after objection, the employees sign new contracts with the transferor replicating their pre-objection terms and conditions, including as to pension, but containing a secondment clause.
• Employees are seconded to work for the new service provider, but they retain the benefit of the terms and conditions they enjoyed before objecting to the transfer, with their continuity of employment preserved.