Outsourcing - Law and Best Practice
When might you have to consider key factors when transferring employees as part of an outsourcing arrangement? What are the risks and opportunities? What liabilities might you incur? If you expect to be involved in this area of employment law and practice, then you will need to think about:
• Liabilities passed on from previous contractors
• Obtaining contractual indemnities against pre-transfer liabilities
• Applicable employment obligations
• Employee pension considerations
• Avoiding successful unfair dismissal claims
At JSB, we have many years' experience of providing training, advice and guidance on all employment related aspects of business transfers – through public courses and In-company training and consultancy. An in-house training programme aimed at HR specialists might include any or all of the following aspects of this complex and increasingly important subject:
TUPE and Outsourcing
• What is outsourcing?
• Acquired Rights Directive
• What is a transfer - the legal tests
• The standard rules and outsourcing
• New definition of "service change"
• When do the rules apply to outsourcing?
• Professional services firms
The Effect of an Outsourcing Transfer on Employees
• Who is covered by TUPE?
• Who transfers?
• "Assigned" and "Employed"
• Timing of the transfer
• The right to object
• Redeployment and retention of key employees
• Case study
TUPE and the Employment Contract
• The rights and liabilities transferring
• Contractual and other rights
• What stays behind?
• Employment terms difficult to replicate post transfer
• Collective agreements and recognition
• Pensions
TUPE and Dismissal
• Automatic unfairness
• The ETO defence
• The role of general fairness
• Constructive dismissal
• "Substantial changes to working conditions"
• Redundancies pre and post transfer
• Liability
• Case study
Information and Consultation Duties
• Collective requirements
• Elections
• When to disclose information and consult
• What information to give?
• What is consultation?
• Employee Liability Information
• Penalties for non compliance
Changing Contracts
• Employees' rights
• Is it possible to agree changes to terms and conditions?
• Harmonization
• Does the ETO mechanism work?
• Changing working practices
• Case Study
TUPE Update
• Key issues
• Trends
• Update on case law
HR and TUPE Issues
• Preparing to outsource
• Impact assessment
• Planning and co-ordination
• Time line for tendering
• Due diligence
• Effective communication
• The benefits of going beyond TUPE
• TUPE & information and consultation
• Motivating wary employees
• Smoothing the way
• Disclosing workforce information
• Practical exercise – TUPE checklists
HR, TUPE and Commercial Matters
• Content of outsourcing agreements
• Drafting tips
• Traps for the unwary
• Negotiating clauses in the agreement
• Warranties and indemnities
• "Accidental" transfers
• Disclosure of information
• Rights of transferring employees
• Service level provisions
• Control during the outsourcing agreement
• Preparing for future generations of outsourcing and insourcing