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College Merger and TUPE – meeting your legal obligations

Client: Chichester College - merging with Central Sussex College (CSC)

Many colleges are considering ways of working more closely together, either with a college merger or through other collaborative structures such as federations, joint ventures, or shared service companies. All have significant implications for employees and it is important that the HR and employment risks are anticipated and managed.

There are two college merger scenarios:

  • Type A involves the dissolution of the colleges involved and a new college being established.
  • Type B is where one or more colleges are dissolved and all the assets and liabilities are transferred to one of the existing colleges. Type B+ is as per Type B, but with a new Board incorporating members from both colleges

From an employment law perspective, both types of college merger involve a TUPE transfer which needs to be handled carefully, as well as dealing with staff engagement and employee relations issues. The people aspects of a college merger cannot be separated from the legal and process issues – this usually presents a challenge which can only be overcome with clear leadership and direction.

This case study is based on a Type B+ merger, with the dissolution of CSC and consequent TUPE transfer of employees to our client, Chichester College.

The solution:

As lead HR Consultant at the Sussex HR Hub, I was appointed to advise and support the Chief Operating Officer and the Head of HR of Chichester College on the TUPE transfer of staff – providing a strategic overview and additional HR resource to the college’s HR team.

My role was to ensure all my client’s legal obligations were met, in respect of TUPE. As well as undertaking key responsibilities and tasks on the TUPE project plan, I was available as a sounding board and TUPE specialist advisor throughout the project.

My contribution enabled the college HR team to maintain ‘business as usual’ during the critical period between the formal public announcement of the college merger plan and the actual merger date.

What I did:

Planning

  • Produced and monitored the TUPE project plan – cross-referencing with other merger priorities – e.g. communications, development, payroll, etc. With so many inter-related priorities, careful planning with a timeline that allowed for unforeseen issues was essential.
  • Contributed to the strategic Workforce Implementation Plan.

TUPE

  • Advised on the HR due diligence requirements and timescales for obtaining Employee Liability Information and meeting legal obligations.
  • Prepared correspondence for Chichester College, in relation to discharging their responsibilities under TUPE as the incoming employer (the transferee).
  • Clarified the ‘measures’ arising from the proposed transfer and drafted the formal proposed measures letter; and final confirmation of measures letter.
  • Prepared communications to transferring staff.
  • Advised on legal implications in respect of TUPE, redundancy and potential restructure of senior posts prior to transfer.

T&Cs and HR Policy

  • Reviewed CSC’s employment contracts and terms and conditions of employment – to clarify which terms would transfer automatically.
  • Reviewed CSC’s HR policies and procedures to identify which elements formed part of employees’ terms and conditions of employment and/or whether any collective agreements existed.
  • Compared Chichester’s and CSC’s terms and conditions of employment, and HR policies and procedures; identifying differences, similarities and implications; to help plan the best way forward for the joint college, post-merger, with due regard to the legal constraints on harmonisation of terms and conditions.
  • The HR policy review gave an early indication as to what could be combined and what should be kept separate at point of transfer; and identified the priority policies to review post-transfer.
  • Produced a comparison matrix of special leave and time-off provisions – including maternity, paternity, shared parental, and adoption leave and pay – to enable each staff group to see their respective benefits.
  • Drafted new employment contracts for the merged college post transfer.

Employee Consultation

  • Advised on the best approach to ensure both colleges complied with the requirements to consult their respective employees and trade union representatives in relation to TUPE regulations.
  • Advised on specific issues raised by Trade Unions enabling both informal and formal consultation to proceed smoothly, including for example, determining the status of CSC’s partnership and recognition agreement.
  • Created and collated a series of Q&As relating to the merger and TUPE to post on the staff intranet. These responses to frequently asked questions helped keep staff engaged and gave them a sense of being involved with the decision-making process. This included Q&As specifically relating to pregnancy and maternity.

Outcome

The merger has had a huge impact on the people who work in both the colleges. From the moment the merger plan was published, there were inevitably concerns from staff regarding, for example, reducing duplication between courses or making savings; how they would be affected personally, would their job be at risk, and so on.

My practical approach to TUPE, what it means for employees and how it affects them – coupled with good communication and consultation on the issue – minimised the complexity of the process and enabled a smooth transition towards the merged organisation.

The merger placed extra pressure on the in-house HR teams to, not only deliver ‘business-as-usual’, but to lead on the many and varied people related aspects of the proposed transfer.

My contribution, specifically in relation to TUPE legislation and process, brought specialist knowledge, skills and experience to the in-house HR team – giving them peace of mind in knowing that the legal and technical aspects of the TUPE transfer were covered – and an extra resource to help with the wide-range of HR related merger activities.

Despite external threats to the project, the HR and TUPE components completed on time, with both employees and trade union representatives engaged in the process.

The responsibilities and legal obligations placed on Chichester College (particularly in relation to the transfer of terms and conditions) were clarified early and contributed to good decision-making for the merged college going forward.

Testimonial

“Dianne provided invaluable advice and guidance on TUPE ensuring that we met our legal obligations. The end result has been the smooth transition of over 400 staff to Chichester College. The amount of work involved in meeting your obligations should not be under-estimated, and having Dianne helping and supporting us meant that we were able to meet the tight timescales for a successful college merger.”

Julie Sleeman, Chief Operating Officer