Mobilisation Plans and TUPE: Where Confusion Creeps In

A mobilisation plan can tick every box a contractor promises during an outsourcing tender, roadshows, welcome packs, a staff helpline, and still leave a separate legal duty unmet: consultation under the Transfer of Undertakings (Protection of Employment) Regulations, known as TUPE. The two are easily mistaken for each other.

What happens to consultation once an outsourcing contract is signed?

Take a council or NHS body outsourcing a service such as grounds maintenance, catering or facilities management. The decision to outsource is a commercial and political judgement made by the commissioning body, and staff are not consulted on it. Whatever consultation happens before the contract is awarded, with bidders, with unions on the business case, with staff in early briefings, belongs to that process, and it ends when the contract is signed.

What applies to staff from that point is a separate legal duty. This is TUPE consultation and our last news article covered what TUPE requires when a service is outsourced. The gap most often appears where a well-run mobilisation programme is mistaken for having already met it.

What does a mobilisation plan actually cover?

A mobilisation plan typically includes roadshows, welcome packs, a staff helpline and regular updates as the transition proceeds. This is good practice, often written into the contract itself as a condition on the incoming contractor, but it is a programme of engagement, not the statutory consultation owed to staff under TUPE.

None of it is a legal right. It is agreed between the commissioner and the contractor, not owed directly to staff and their representatives. The two can run alongside each other, but they are not the same process.

In practice, the two often need to run in parallel rather than one after the other. Mobilisation communications can continue throughout the transition, while formal TUPE consultation follows its own separate timetable for whichever “measures”, meaning changes affecting the transferring staff, are actually proposed.

Where does the gap actually bite?

A mobilisation plan might cover a change to shift patterns or a new reporting line as part of its general communications. That is not the same as consulting on it. Unless staff have actually been consulted on that specific measure, listened to, properly considered, and given reasons if their views are not adopted, the statutory duty has not been met, however well the wider engagement went.

This matters because the two processes look similar from the outside. Both involve talking to staff before a transfer. The difference is who the duty is owed to, and what it requires: general reassurance is not the same as consultation on a specific proposed change.

In practice, avoiding the gap means naming who owns each duty before the transition plan is finalised: the outgoing employer for measures affecting existing terms, the incoming employer for its own proposals, and both jointly if the transfer itself triggers redundancies.

What else can apply alongside TUPE?

If 20 or more redundancies are proposed, a further duty applies regardless of TUPE. Section 188 of the Trade Union and Labour Relations (Consolidation) Act 1992 requires collective consultation with employee representatives before any dismissals take effect.

Redundancies connected to the transfer itself carry an extra risk. A dismissal is automatically unfair if the transfer is the reason for it, unless there is an economic, technical or organisational reason entailing changes in the workforce, known as an ETO reason. Restructuring that happens to coincide with a transfer needs a genuine reason of this kind, not simply the fact of the transfer.

USDAW and Wilson v WW Realisation 1 Ltd (in liquidation) and others (Case C-80/14), arising from Woolworths insolvency, confirmed how broadly the collective consultation duty can apply. Failure to consult properly under section 188 carries the same maximum penalty as failing to consult under TUPE: an award of up to thirteen weeks’ pay per affected employee.

Public bodies carry further layers on top of this, including the Cabinet Office Statement of Practice on staff transfers, NHS staff transfer guidance and Local Government Pension Scheme requirements. None of these replace the duties above. They sit alongside them.

A mobilisation plan and a TUPE consultation process are not competing versions of the same thing, and neither is a substitute for collective redundancy consultation if redundancies are proposed. Each needs its own timetable and a named owner, agreed before the transition plan is signed off, so that none of them is mistaken for having done the others’ job.

How tCI Can Help

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Whether you’re preparing for a high stakes service change, building long term consultation capability, or need confidence that your evidence approach will stand up to scrutiny, we can help.

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