From 1 April 2022 to 30 September 2022, Primary Care Networks (PCNs) must provide Extended Hours Access in accordance with the Network Contract DES Specification. In addition, between 1 April 2022 and 30 September 2022, PCNs must prepare for provision of Enhanced Access and deliver Enhanced Access from 1 October 2022.
Within a PCN’s area there will have been CCG commissioned Extended Access Services which are likely to end prior to the commencement of Enhanced Access by PCNs in October 2022. These CCG commissioned Extended Access Services may have been provided by different types of providers in different areas.
“TUPE” stands for The Transfer of Undertakings (Protection of Employment) Regulations 2006. A TUPE transfer happens when an organisation, or part of one, transfers from one employer to another or, the provision of a service transfers from one provider to another. If TUPE applies, the employment of affected employees transfers along with the transferring business or service to the new employer. This is discussed in more detail below.
It is for PCNs to assess whether TUPE may apply to any arrangements they put in place in respect of Enhanced Access. This guidance note is intended to set out key points relating to TUPE which should assist PCNs in their assessment of TUPE in their particular area and in respect of their particular plans for Enhanced Access. This guidance note does not nor should not replace the need for PCNs to seek formal legal advice on this matter in relation to their own plans.
NHS England strongly encourages PCNs to consider urgently whether TUPE is likely to apply and connect with their commissioner for any support if needed. The following links provide further information and guidance about the principles described below and the application of TUPE:
- Department of Business Innovation and Skills: Employment rights on the transfer of an undertaking
- Advisory, Conciliation and Arbitration Service (ACAS): TUPE transfers
When does TUPE apply?
TUPE can apply where services are recommissioned and a new service provider is appointed.
There are a number of conditions that need to be in place for TUPE to apply:
- There needs to be a commissioning client who has decided to recommission services and who appoints a new provider.
- The services in question need to be fundamentally the same on recommission.
- Once it has been established that the same client is recommissioning fundamentally the same services, TUPE will apply to employees who are assigned to an organised group of staff who carry out those services.
If TUPE applies, it serves to transfer the employment of affected employees, and all rights, powers, duties and liabilities associated those affected employees, to the new service provider.
Fundamentally the same services
The degree of similarity in services required for TUPE to apply is a matter of fact in each case. The activities in question are assessed in a common sense and pragmatic way, not in minute detail. Services do not have to be identical before and after the change of service provider for TUPE to apply.
NHS England considers that the new service of Enhanced Access is likely to be “fundamentally the same” service as the existing Extended Hours Access. But it will be a matter of fact in each PCN area depending on what has been provided and what will be provided, and PCNs will need to consider the local circumstances.
Assigned to an organised group of staff
An organised grouping of staff means, in practice, an identifiable team which is organised by reference to the requirements of the contract and which is essentially dedicated to carrying out the relevant services. Employees must be part of the team delivering the services in question. TUPE will not apply to, for instance, a finance director responsible for ensuring the financial stability of a GP practice, but who is not part of the team delivering GP services. As the Enhanced Access service will involve patient access to clinicians, it is anticipated that most staff will be part of the organised group of staff, including clinical and administrators such as receptionists and those who type up clinical notes.
It is possible for a single employee to be an organised grouping of staff for the purposes of TUPE.
Whether an employee is “assigned” to an organised group of staff is a question of fact in each case. An employee who is working on a temporary basis with the organised group of staff is not assigned to it. For all other members of the organised group of staff, whether they are assigned to that group will depend on a number of factors, including the percentage of time which an employee devotes to the services and their integration into the organised group.
Will TUPE apply?
It is not possible to say that TUPE will or will not apply at this stage, as the answer to the question will depend on the variables at the time in each case. However, NHS England considers that the moving from Extended Hours Access to Enhanced Access and ending funding for the CCG commissioned Extended Access Services could give rise to TUPE transfers. TUPE will apply if the conditions set out above are met.
A PCN could be providing Extended Hours Access directly up to 30 September 2022 but decide to sub-contract Enhanced Access from 1 October 2022. TUPE would likely apply to transfer the staff employed by the PCN carrying out Extended Hours Access to the new sub-contractor providing Enhanced Access.
If TUPE applies
If TUPE applies the employment of staff would transfer automatically to the new provider. There are a number of obligations under TUPE that apply to the outgoing provider and the new provider in relation to staff that must be considered and implemented before the transfer takes place. These include the need for the ongoing provider to identify staff in scope for transfer and provide staffing information to the new provider. Staff must be given prescribed information about the transfer before it takes place and, in some cases, consultation must also take place ahead of a transfer. The new provider will need to tell the outgoing provider about any potential changes that it envisages making in connection with the transferring staff and this information must be passed on to the transferring employees.
PCNs are encouraged to seek their own legal advice in this area.