For most of us in practice, managing and leading change processes is a regular activity. This gets particularly challenging when changes impact on staff roles, responsibilities, hours, work environment, or even contractual entitlements.

In May’s HR Clinic, Robyn Clark (aka JacksonR) and Susi O’Brien (HR Help advisor) answered all your questions on all aspects of managing change.

Here is a summary of the questions we received, and the answers given.

Can you talk us through the TUPE consultation process?  When do you start it/how is it communicated? I assume it just applies to those being TUPE’d?

It’s a complicated process and this is just a simple summary, but the easiest way to think about TUPE is that there are two sides – the employer who is losing staff (transferor) and the employer who is gaining staff (transferee).

Each of these organisations has an obligation to consult with its own staff. For the transferor that means consulting with the staff who are about to transfer, as well as any other existing/continuing employees who might be affected by the transfer. The transferee is required to consult with any of their existing staff who might be impacted by the transfer – for example if redundancy processes might start as a result.

Likewise, each organisation must provide information to the other side. The transferor provides Employment Liability Information (ELI) about the staff who are transferring and what their terms and conditions are. This must be provided at least 28 days before the transfer. Following that, the transferee provides the transferor with information relating to ‘measures’ they intend to take following transfer (e.g. if redundancies are planned, if they have a different pay date, etc.). The transferor informs its employees pre-transfer what these planned measures are.

Those are the legal minimum requirements, but in practice most transferees will request to meet and chat with transferring members of staff directly, in advance of the transfer, as it’s good for everyone involved to get to know each other and make plans. Once a transfer of staff is announced, it’s good to have arrangements in place for consultation, so that individuals have a way to ask questions and be reassured about what all the changes mean.

Like I say – this is a very simple and quick summary of TUPE. If you are managing a process directly, seek further advice.

When you say TUPE, if it is where a service (call it service A) is being moved to another service (call it service B), how do you decide whether the staff of service A have to move to service B if not all of their duties relate to service A? Is there a critical mass of time? Are you allowed to say, “We don’t want them” (or indeed “We do want them”)?

This relates in some ways to the previous question. There are a couple of smaller questions in this that I’ll try to pull out.

Firstly, how do you work out who stays and who goes when staff work across multiple services and only one service is transferring? This is hard. There’s no straightforward answer and sometimes there’s an element of negotiation with the other provider. But roughly, for an employee to transfer I’d expect them to usually be spending at least 60% of their time on the service or project that is transferring. Bear in mind that it will mean their entire employment transfers. You can’t transfer 60% of a person! Usually (hopefully) things balance out so that the new provider ends up taking on some staff who spend 60-70% of their time on that project, and doesn’t take on people who only spend 30-40% of their time on it. If an employee’s time is spent 50-50% on that project and others, it is safest to assume that that they won’t transfer unless the new provider has openly said they’re willing to take them.

Which leads me onto your other questions about whether there is a choice in all this? Strictly and legally speaking, no. There is no choice. Either TUPE applies to someone’s employment or it doesn’t. But in borderline cases, where staff work between different services and not all of those services are transferring, it’s not easy to know whether TUPE is supposed to apply. You’d need a tribunal judge to give you a definite ruling, but that’s not a helpful answer here. So in reality I’m aware that there can be a bit of negotiating between providers in these cases, in order to find a solution which everyone can live with. What you don’t want is a situation where NO ONE accepts that the staff member belongs to them. That happened to a friend of mine some years back and it was incredibly stressful for her. She had to wait for a bunch of lawyers to argue about who was going to cough up compensation for her lost employment. As a practice, you really don’t want any of your staff to end up in a situation like that.

I want to change the structure of a team, so I expect to need to formally consult with them. There are five people impacted, so how long do I need the consultation period to be? If I want to make contractual changes and all of the staff agree to them, do I still need to formally consult with them?

First of all, good for you on recognising the need to formally consult with regard to changes to people’s contracts. There’s no precise minimum or maximum period required by law. The consultation will last for as long as it takes to get agreement to changes, or until the organisation gives up, or until any more drastic step (such as dismissal and re-engagement) is taken. How long you should plan for largely depends on the nature of the changes and how easily you expect to reach agreement with staff members.

If the changes are nice and everyone agrees straight away then job done! No need to consult any further. Just confirm everything in writing and get people to sign. There’s a template contract variation document [PLUS] on Practice Index if you would find that useful.

If people don’t immediately agree, then be prepared for a lot of discussion. This could take weeks, or even months.

I am looking to restructure my team and this will mean reducing from three administrators down to one. But there is a new hybrid administrator-receptionist role being created at the same salary. So really I only expect to lose one person. One of the three administrators is pregnant. How does that affect things?

Okay, good question! For some years, staff on maternity leave have held additional legal protections in redundancy situations, and from April 2024 onwards, these protections now also apply to employees who are pregnant, or who have returned from maternity, adoption, or shared parental leave within a set timescale. See the Practice Index HR Alerts section, or my recent blog about legal updates for more information about this.

All three individuals will be assessed using fair selection criteria (which you have consulted on in advance). If absence record is included in that, you’d remove any pregnancy-related sickness before carrying out the scoring exercise. From that exercise you identify the two lowest scorers. How has the pregnant employee done? If they were the top scorer, their job is safe. You can then make a sensible and reasonable decision about which of the lower scoring people get offered the new role first.

But what if the pregnant employee was the second or lowest scorer? That’s when these new legal protections kick in. The pregnant employee has the right to be considered first for all alternative roles. So regardless of how well she scored, or her likely feelings about being on reception, as long as the alternative role is on the face of it, suitable as an alternative, you have to offer it to her first.

I currently have in-house cleaners but I want to arrange for a private company to take over the management of the service for me. One of them isn’t particularly good – do the new company have to take them on?

Most likely yes – though there can be exceptions. TUPE rules set out that if a service is being transferred from one provider to another (which can mean going from in-house to outsourced, as is the case here), then employees will transfer to the new service provider. So if this cleaner is employed to clean all areas of your practice every morning and you want the new company to do the same thing, then the cleaner will transfer over to that new provider and carry on doing the same job under the new provider’s employment. The good news is, it gets you out of having to run redundancy processes. The bad news is that you’re stuck with the same bad cleaners. Moral of the story: never outsource a service just because you want to get rid of existing staff!

As I mention though – there could be exceptions if either, A) the individual isn’t sufficiently connected to the service in question (this is not going to be an issue when they’ve been working in-house previously, but hypothetically could be worthy of argument in other circumstances – say you already have an outsourced cleaning contract and one of the cleaners on it only spends 20% of their working time at your particular practice, the rest of the time they work for other clients of the cleaning company elsewhere); or, B) if the nature of the cleaning service being provided is fundamentally changing. Say the new cleaning company was going to provide a 100% nightshift service, whereas previously it was a 100% dayshift service. You could then realistically argue that it wouldn’t be the same type of cleaning service, and therefore TUPE wouldn’t apply. Obviously if, for whatever reason, TUPE didn’t apply to the transfer, then you’d be stuck with that potential redundancy situation to manage…

Quick example, I’m supporting a client at the moment to manage the transfer of staff over to them. These staff are all involved in providing a particular community-based service.  We noticed that the outgoing provider had included their office cleaner in the mix, but my client isn’t taking over the provider’s old office. That cleaner has absolutely nothing to do with the community-based services being transferred. We pointed this out to the outgoing provider and they’ve agreed to move their office cleaner off the transfer list.

We are potentially going to TUPE over some staff from another employer – how long are their terms and conditions protected for?

Protected from what is the key question here. Protection from being deliberately harmonised or aligned with other members of staff hypothetically lasts forever and ever and ever. If the reason you’re changing someone’s terms and conditions is solely or predominantly connected to the TUPE transfer, then there is no expiry date on this protection. Hypothetically, if, 20 years after the transfer, an employer decided it’d had enough of those TUPE protections and wanted to harmonise, it would still be unlawful.

However, the law recognises that circumstances in any organisation can change over time, and just having being previously involved in a TUPE transfer does NOT protect someone’s terms and conditions from changing for reasons which are unconnected to the transfer. If in the future you decided to do a general consultation amongst all staff on new benefit packages which affected sick pay or holidays, the previously TUPE’d staff shouldn’t have any additional protection above anyone else in that situation. If the organisation can persuade a tribunal that their reasons for making changes have nothing, or at least very little, to do with harmonising Ts and Cs post-transfer, then TUPE rules have nothing to do with it. (You’d still have to consult and get people’s agreement to changes, of course, so it’s not necessarily plain sailing!)

Do you have any tips for running a formal consultation to change Ts and Cs?

Formal consultation means letting staff know how you propose to change Ts and Cs and why. Give them opportunity to discuss and ask questions, and to feed back their thoughts. Be prepared to offer something in return for their agreement, and potentially to compromise along the way. Remember, this is a negotiation. You’re trying to sell the changes and get agreement. If you approach this from a standard ‘I am your manager and I am telling you what I want you to agree to,’ manner of communication, you’ll encourage people to argue and disagree. If people see that you’re genuinely trying to engage on the subject, then they’re more likely to genuinely engage in return. As well as keeping you clean and dry legally, this also helps to maintain high levels of motivation and satisfaction within your workforce. Done well, strangely enough, workplace consultations can actually increase team morale occasionally, because people like being listened to and included in decision-making.

If in doubt, start your proposal by including some points which you are potentially willing to compromise on along the way. That way you give yourself wiggle room to offer those compromises at a later stage. And definitely, where possible, offer something in return for people’s agreement, whether this is a lump sum of money, an alternative benefit, a salary increase, or whatever.

A final tip just to mention here, don’t lose sight of the main prize. You still have a practice to run and patients to care for. It’s easy to get caught up in the drama of getting people to agree to changes, and sometimes the battle over seeking that agreement becomes an end in itself. What I’m trying to say, is that if what you’re trying to change isn’t life-or-death important, and you’ve been consulting until you’re blue in the face about it with everyone getting more and more frustrated… take a step back and think, ‘Is this the right thing to be doing right now?’ ‘Do I have other options?” Sometimes we have to go back to the drawing board and start again.

Are staff entitled to union representation if only one of them is affected by a change? 

I’m going to say, ‘it depends,’ again. Is the staff member a union member? If they’re not, then it’s a null question. If they are a union member, then whilst there’s no explicit statutory right to union representation in small-scale situations like this, if the case eventually went to tribunal then refusal to engage with the union rep would be seen as unreasonable.

If the change proposed would potentially lead to 20 or more staff losing their jobs over any 90-day period, then statutory consultation processes would apply, which I don’t need to go through here in full I think, but they would include a right to representation by union or other elected reps.

What factors should we take into account when going through a redundancy selection process? 

Okay, so there are various steps within a redundancy process. Selection criteria and process is one of them, so I’ll focus on that here.

First of all, decide on clear, fair selection criteria and consult on what they are with staff, prior to using them. What I mean is, once you’ve identified the pool of staff from which redundancies will be made and informed them about this, let them all know the selection criteria and process you plan to use. Let them inform you of any questions or objections they have in advance. You don’t have to agree with those objections, but you do need to consider them. Believe me, it will make life easier later on.

Choosing the right selection criteria is often a difficult task. Where possible, use objective criteria such as absence records and measurable work output. It’s clear, and less open to individual interpretation. But in the real world, it’s rare that you can make meaningful organisational decisions without reference to some subjective criteria such as management assessments of performance or potential. This is okay, but try to strike a reasonable balance between objective and subjective considerations.

Whatever system you use needs to be evidence-based. Many an employer has come unstuck in a tribunal after being asked to describe the reasons why an employee was scored in a particular way. If you’re unable to justify that decision because you didn’t collect or write up any evidence at the time, you’re in trouble.

It goes without saying, of course, that your selection criteria must be non-discriminatory.

Likewise, it should go without saying that the criteria need to be meaningful in the context of organisational needs.

I suggest that you use between 7-10 criteria, and that each one is given a standard score, say from 1-5. You can total these up at the end and compare how employees in the pool do. If you have, say, four people in the pool and two redundancies to make, then your bottom two totalled-up scorers would be the ones selected.

There’s no such thing as a ‘perfect’ set of selection criteria which you can apply to all redundancies – but possibilities include:

• Length of service
• Disciplinary record
• Qualifications
• Leadership skills
• Job performance
• Relevant experience
• Absence record
• Attitude and flexibility
• How their skills match anticipated future needs at your practice

There’s lots, lots more that could be said about redundancy selection, but hopefully that starts you off.

I have tried informally consulting with my staff over changes to annual leave entitlement, as we need to level it out for all staff (older staff were on historically better terms), and it hasn’t been accepted, so I need to formally consult now. I fear that the changes will be refused, so does that mean I have to consider ‘fire and rehire’?

You know how in very old movies, or kids’ shows, when something terrible is mentioned there’s a ‘Duh Duh Daaaaaaah!’ sound? Well I hear that sound every time someone mentions ‘fire and rehire’ in contract-change situations. It’s a drastic, last-resort step to be avoided at all costs in my opinion. Put it this way, it is only in the last few weeks that Tesco have been in the UK Supreme Court arguing about the subject. None of you guys on today’s call can afford to spend hundreds of thousands on the legal fees amassed by going to the Supreme Court, and there’s no guarantee that Tesco are going to win on it, so be very careful about this.

The law is also changing in a way that will make fire-and-rehire situations more complicated in future, with the introduction of a statutory code of practice on the subject, which employers will have to follow. I expect that requirement to be formalised later this year. One requirement in it, for example, is that the employer must formally contact Acas for advice prior to even mentioning the possibility of fire and rehire to any employees.

Some may be wondering, what on earth is ‘fire and rehire’? It’s a nickname for dismissal and re-engagement, i.e., the employer wants make changes to terms and conditions, the employee says no, the two sides argue about it for ages, there’s no agreement, so finally the employer says, ‘Right, that’s it, I’m dismissing you with notice, and will offer you your job back only if you agree to these new contract terms.’ That’s fire and rehire. The employee can potentially sue for unfair dismissal if they have over two years of service, or they might be able to claim discrimination under other circumstances, such as if the change impacted upon a reasonable adjustment or childcare arrangements.

That’s not to say that the employee will always win – or even bother suing of course. If you have followed every step of what is currently the draft statutory code of practice on fire and rehire, then theoretically you’re in a strong position to defend claims. But those steps are quite detailed, and you’d need to follow them thoroughly, taking HR and/or legal advice along the way.

My advice, therefore, is that if you’re only at the start of your consultation journey about annual leave changes, don’t mention fire and rehire just yet. Focus on running a good, fair formal consultation using the tips which I mentioned earlier on the call. In particular, what are you offering staff if they accept these changes? If I was losing a chunk of annual leave, I’d expect something good in return. If you’re not offering anything, and you’re relying on tugging staff heartstrings to get them to accept worse terms, then is this realistic? What is everyone else in the practice giving up? What are partners giving up? Why should one group of staff be asked for sacrifices purely on the basis that they’ve been more loyal to the practice and stayed longer than anyone else? Sometimes we need to consider how our proposals look from the perspective of people sitting on the other side of the table.

Can you use different sick pay schemes when employing new staff (i.e. less favourable)?

Yes you can, and this is very common. If it’s a straightforward ‘everyone employed pre-2024 is on X sick pay, and everyone employed post-2024 is employed on Y sick pay, then you’re unlikely to receive any legal challenge. However, be aware that it can potentially fuel resentment within teams, and an ‘us vs them’ culture, so keep an eye on how things are going. If people complain, address this quickly, politely, and firmly.

I’m looking to change our practice sick pay arrangements. Do I need to do a formal consultation?

Similar answer to the previous question. Most likely yes, but there are exceptions.

In my experience of working with GP practices, sick pay arrangements tend to be contractual. Just as a heads-up to anyone unfamiliar with this point, a contract is a legally-binding document between parties. It can’t be changed without the agreement of both parties. Therefore, if one of your staff comes over to you and says, ‘Here, boss, from next week me and the team have decided that we’re entitled to three months’ full sick pay a year,’ when the contract only allows for two months, then you could justifiably tell them, ‘Errr… no. That’s not happening!’ In a similar way, you can’t usually announce to your staff that you’re reducing their two full months of sick pay to one without their agreement.

So if your staff contracts state that they’re entitled to X amount of sick pay and you want to change this, you need to seek agreement from employees. If the change is a positive one and you’re increasing the amount of sick pay they get, then it’s unlikely that anyone is going to object. Just tell them what’s happening and answer questions as needed. I assume though, that the change proposed here isn’t 100% positive, and as such, you can’t assume that staff will agree to it. Formal consultation will be needed.

I mentioned that there might be exceptions to this… Sometimes sick pay isn’t contractual. Maybe your contracts already say that the practice has the right to make changes to it when required? This could potentially give you a lot more wiggle room on the need for consultation and agreement, but establishing the contractual or non-contractual basis of benefits can be complicated. Get good HR and/or legal advice before deciding to impose any change on the workforce without getting their agreement. And remember that even if you don’t legally have to consult on sick pay changes, you’re likely to end up with an unhappy workforce if you don’t!

Useful resources

• Redundancy policy [PLUS]
• Redundancy – Notice with pay letter [PLUS]
• Redundancy – Notice with no pay letter [PLUS]
• Redundancy – At risk letter [PLUS]
• Redundancy – Selection matrix [PLUS]
• Notification of variation to contract letter [PLUS]
• Blog – April’s employment law changes
• An Introduction to Managing Change [Learning Package]
• Managing Change [Learning Package]
• Change Management [Practice Index Training]

Future HR Clinics

Managing Grievances – Thursday 20th June at 12pm – Book here

“I want to make a complaint” is never a phrase we relish hearing, and it can be all too jarring to hear it from the mouths of our own staff. But that is essentially what a grievance is – a complaint about the working environment. So how do you as a manager deal with grievances? Should it be informal, or should it be formal? Does it link in with other HR policies you have in place? What do you do when relationships are fraught and grievances are flying in from all sides?! This HR Clinic will focus on how we manage the grievance process, what you as a manager can do to reduce the number of grievances coming in and how you can effectively deal with them when they do.

Performance Management – Tuesday 16th July at 12.30pm – Book here

It’s never easy having to deal with a staff member who is underperforming. Quite often, issues are left to fester because of the anxiety caused by thinking about how you would manage the situation or the uncertainty on how best to deal with it. However, managing performance doesn’t have to be a punitive process. Join Robyn Clark (aka JacksonR) and Susi O’Brien, HR consultant, for this HR clinic where they will be answering all of your questions about how to effectively manage poor performance.