Orthodontic Tendering and TUPE – John Grant of Goodman Grant Solicitors

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  Posted by: The Probe      8th January 2019

In 1981, the Transfer of Undertakings Protection of Employment Regulations (TUPE) came into force.

They were designed, as the name suggests, to provide protection for employees when a business was being sold and if you have ever bought or sold a dental practice, then your solicitor should have made you aware of your duties and responsibilities arising from these regulations.

In the majority of instances on a sale and purchase, the consequences of the regulations are not that significant, as most buyers do not intend to change the terms and conditions of staff.

In short, the regulations provide:

  • Employees have the right to be informed and consultedon the sale of a business, prior to the sale being completed (which includes any changes that a buyer proposed to make to their terms)
  • Afailure to inform and consultemployees would of itself entitle any employees to claim compensation from an Employment Tribunal
  • A buyer could not alter the terms and conditions of employmentto the detriment of employees after acquiring the business
  • Employeescontinuity of employment was preserved(In other words, if an employee had been working for the seller for 10 years, they would – on completion of the sale of the business – be deemed to have worked for the buyer for 10 years and would not have to work a further 2 years for a buyer, in order to claim unfair dismissal)
  • Any dismissaldeemed to be “connected with” the transfer would be automatically unfair

In 2006, these regulations were extended to apply to any change of service provider. The application of these regulations in these situations is complex. A simple example would be:

Company A contracts with company B to provide security at its warehouse. Company A decides to terminate the agreement with company B and to enter into a new agreement with company C.

In that situation, any employees of company B who provided security services to company A would be transferred under the regulations, to company C.

To apply these regulations to NHS tendering for Orthodontic Contracts, NHSE is company A, an existing contractor/provider is company B, and a successful tenderer is company C.

So on the face of it, anyone successfully tendering for an Orthodontic contract will have to take on the staff who were engaged by the previous contractor (whether that contractor bid for a new contract or not). The staff will then become employees of the successful bidder with their current terms and conditions intact.

If only life was always that simple…

Whether or not TUPE will apply in the case of Orthodontic Tendering is, to put it mildly, a complex legal question – the answer to which will depend on a detailed analysis of the circumstances surrounding each individual contract.

Here are just a few of the issues which are going to arise:

  • What happens if an employee works with private patients as well as NHS patients?
  • What happens if you had a contract, were successful in bidding, but have less UOAs and another contractor bidding for the same lot, lost theirs?
  • What happens if you decided not to bid, or were unsuccessful but have been offered a run off contract and need staff to service that run off contract?
  • What happens if the new contract is double the size, or half of the size, of the existing contract?
  • What happens if the new contractor’s premises are 20 miles away from the current provider?
  • What happens if TUPE does apply, but the employee does not want to transfer to the new provider?
  • What happens if TUPE applies and the existing provider changes the terms of employment of the staff?
  • What happens if the existing provider thinks TUPE does apply but the new provider does not?

 

If you get the answer to these questions wrong, then you run the risk of a claim being made against you, which may cost you a great deal of money, as well as time and added stress.

If you are ever unsure of the most appropriate action to take, it is vital to seek out assistance from a reliable team of dento-legal solicitors. Those at Goodman Grant have extensive experience and knowledge of the complex legal and regulatory requirements faced by dental practitioners. The professional team can provide reliable advice and guidance, so you can make sense of your obligations in regard to TUPE and Orthodontic Tendering.

 

John Grant of Goodman Grant Solicitors, Chairman of the Association of Specialist Providers to Dentists – contact on jmg@goodmangrant.co.uk

 

For more information visit www.goodmangrant.co.ukor contact your nearest office:

London: 0203 114 2133

Leeds: 0113 834 3705

Liverpool: 0151 707 0090


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