Managing change in housing
TUPE and changing terms and conditions of employment
Many housing associations will have ‘inherited’ employees from other organisations under the provisions of the Transfer of Undertakings (Protection of Employment) Regulations (TUPE). If employees are transferred to a housing association under the provisions of TUPE, they will have their terms and conditions (T&Cs) protected and there is limited scope for associations to then implement changes to these.
This gives rise to potential difficulties for housing associations that wish to implement changes to standardise T&Cs across all their employees.
There are a number of things to consider.
Agreeing a change
Does the proposed change constitute a change to the contract at all? In the event that the proposed change is not permitted by the contract, can the terms be changed by way of agreement with employees and/or dismissal and re-engagement on new terms?
Buy outs
The added complication of TUPE is that if an employee has transferred to the association under TUPE, any T&Cs change related to the TUPE transfer will be VOID even if the employee agrees to it.
Under these circumstances, an employee may agree to receive a payment in order to ‘buy out’ some contractual benefits that they have transferred with. In this case, it is advisable for the association to agree with the employee that:
- their current T&Cs end with immediate effect by mutual agreement, and
- in consideration for receiving the ‘buy out’ payment, the employee agrees to enter into a new contract of employment directly with the association (with their continuity of employment specifically preserved)
In these circumstances, the old inherited contract has been brought to an end by mutual agreement in consideration for receipt of the ‘buy out’ payment.
Failure to reach an agreement
If employees refuse to accept any change to their T&Cs then a housing association is entitled to look at a restructuring exercise.
One legitimate reason for changing T&Cs might be when an association needs to restructure a department or make clear changes to its job functions. This is known as an Economic Technical or Organisational (ETO) reason, entailing changes in the workforce numbers or functions. Before embarking upon any such restructure, the association should take clear legal advice as to whether or not it will be able to establish an ETO reason, something with which Capital Law’s expert employment team will be able to assist.
Supporting employees affected by change
Consult Capital’s career transition team believes in tackling changes head on by enhancing every employee’s ‘employability’. Employees with clear visions and goals for the future are more successful at achieving goals and are better equipped to face change, and even use it to their advantage.
One of the ways in which we can help employees to ‘take charge’ of their career is to hold a 1-2-1 career coaching meeting with each employee impacted by changes.
Through coaching, employees can become more agile and less frightened by change. We work with them to draw up a blue print to help them manage the change, and their careers beyond this.
Should the proposed changes indicate that employees need to apply for roles in the new organisation, then Consult Capital can offer support to actively develop and enhance their employability. With our support, employees feel confident and qualified to make decisions on their future.
Consult Capital’s internal mobility workshops provide employees with the opportunity to review their career, CV and future applications together while providing practical advice, from designing their CV to suit the internal market, to interview preparation.
- For those who are successful at application for another internal role, we would coach to help them ‘onboard’ and settle into their new role
- For those unsuccessful, cost effective career transition support is available. Consult Capital can offer bespoke solutions through 1-2-1 coaching and group seminars, to prepare them for the external job market. Such career transition support is considered to be of huge benefit to both organisations and employees
Managing contractual changes, new staff and redundancies can be a challenging process, but it needn’t be stressful. With the right advice and support, changes can be managed in a way that offers benefits for the organisation as well as the affected employees. Consult offers a comprehensive service designed to get the best possible outcome for all parties.
Contact us:
Richard Thomas, Partner in Capital Law’s Employment team – 0333 2400 489
Donna Merrick, Consult Capital’s Head of HR Services – 0333 2409 778