NHS Orthodontic Contracts – TUPE Know The Risks

NHS England have recently carried out a procurement process in the South of England to award new contracts to provide orthodontic services from 1^st April 2019. The CODE Total HR team have been supporting a number of orthodontic practice members going through the tender process and having to deal with the complexities of “Transfer of Undertakings (Protection of Employment) Regulations (TUPE)”.

There are two situations where TUPE regulations may apply; business transfers and service provision transfers; in the case of the orthodontic contracts TUPE would be considered as a service provision change, as a new contractor is taking over activities from another contractor. However, it is not as straight forwarded as that; particularly where the NHS have awarded new contracts to complete treatment for example, which then clouds the issue of whether TUPE applies at all. In this situation, both parties would need to carry out their own due diligence and assess the risks.

Whether or not you have been awarded a contract or have lost the contract; you will find yourself having to understand whether you have any obligations under the risky area of TUPE.

Within the Invitation to Tender (ITT) there is a section asking bidders to explain how they would comply with employment law and TUPE regulations if they were to win the contract. The NHS expect the current contract owner and the successful bidder to essentially battle it out between themselves and their legal representatives, to establish whether TUPE applies and who is liable for any potential redundancy costs.

Both the outgoing employer and the incoming employer will have obligations under TUPE, it is essential to seek expert advice from the outset. With a 90% increase in tribunal claims since the abolition of fees; employers are exposed more than ever if they get it wrong.

• Unfair dismissal claims
• Constructive dismissal claims
• Breach of contract claims
• Breach of TUPE regulations
• Information and consultation claims
• Tribunals can award compensation to each affected employee for a failure to consult under TUPE

CODE Total HR will provide the support you need to understand and mitigate the risks and pitfalls of TUPE,  so you can focus on your business, CODE Total HR. We will look after your HR as well as you take care of your patients.

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