LRD guides and handbook February 2014

TUPE - a guide to using the law for union reps

Chapter 2

Transfers within public administration

[ch 2: pages 24-25]

A reorganisation within a public administration, or the transfer of administrative functions between public bodies, is not a relevant transfer for the purposes of 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 will also apply in the event that TUPE is excluded because what is being transferred is of an administrative (i.e. regulatory or supervisory type) function (see BIS TUPE guidance, 2014).

COSOP promises “TUPE equivalent” treatment for staff involved in these transfers. COSOP was considered by the Courts in Law Society v Secretary of State for Justice and Office for Legal Complaints [2010] EWHC352. In this case, the Court described COSOP as a statement of policy rather than a piece of legislation, and said that as such, ministers are not bound to apply it. However, the Court also confirmed that a failure by ministers or public sector employers to take COSOP into account in future transfers could lead to judicial review.

COSOP was revised in November 2013 to take account of new arrangements for the Fair Deal Pension policy. These changes are discussed in Chapter 5. 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, and the government expects other public sector organisations to follow it (see COSOP Para 6: Coverage). COSOP has the support of the Local Government Association which encourages its application by individual local authorities.

The government also 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).