A change in the weather: TUPE and the weather presenters - as published in HR Magazine

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Posted on 01 Nov 2016

A change in the weather: TUPE and the weather presenters - as published in HR Magazine

In September it was announced that MeteoGroup will take over the Met Office contract to provide weather services to the BBC. What would happen when the contract moved to MeteoGroup became a popular topic of conversation at many a dinner party – would some of Britain’s best loved faces (Carol Kirkwood being someone of particular concern) remain on our screens to update us on the blustery winds coming in from the east, or would we have to get used to a whole new set of faces? 

The answer to this question depends on who actually employs the presenters. If they are already employed by the BBC when the service transfers, it is unlikely that the change to MeteoGroup will affect their employment. On the other hand, employees employed directly by the Met Office involved in providing the service to the BBC may have their employment transferred to MeteoGroup under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) when the weather services contract transfers. 

TUPE applies where immediately before the change of service provider there is an organised grouping of employees situated in Great Britain whose principal purpose is to carry out the relevant activities on behalf of the client (the BBC) and where the activities remain fundamentally the same after the change of contractor. Where TUPE applies, the employees assigned to the service that is transferring automatically become employees of the new service provider from the point of the transfer. They transfer on the same terms and conditions of employment (although there are some exceptions, such as with respect to pensions). 

The good news for Carol Kirkwood fans is that she is actually an employee of the BBC. This means that she will remain employed by the BBC and the change of service provider is unlikely to affect her employment (although she should still be informed and consulted about any changes that affect her resulting from the change in service provider). It appears that other favourites, such as Tomasz Schafernaker, are employed by the Met Office. Their employment will transfer to MeteoGroup on the same terms and conditions, which fortunately means that we should still expect to see them on our screens. However, these presenters could choose not to transfer to MeteoGroup and instead object to their employment transferring. This would mean that their employment would come to an end, but they would not be able to claim unfair dismissal or breach of contract. It could also mean that we won’t see them presenting the weather on the BBC any more (unless they reach an agreement for the BBC to employ them directly).

The ability to object to a transfer can be hugely problematic when trying to retain key talent. Legally, there is nothing a company can do to stop an employee leaving. As the employee’s contract does not transfer, the new employer will not generally be able to enforce any contractual post-termination restrictions, meaning that the employee could be free to work for a rival employer. Often, one of the only ways to retain top talent is for the employer to dig deep and cough up cash to try and retain the employees after the transfer. However, this will not always work. Although probably not a TUPE scenario, Channel 4 are a current example of where offering plenty of “dough” has not “proofed” to be a “cake walk”. As has been widely publicised, although Channel 4 has bought the rights to the Great British Bake Off, only one of the four current presenters, King of Bread, Paul Hollywood, has agreed to remain with the show as it moves from the BBC to Channel 4.

This article, by Katie Mahoney, was originally published in HR Magazine at http://www.hrmagazine.co.uk/article-details/a-change-in-the-weather-tupe-and-the-weather-presenters-1 

The articles published on this website, current at the date of publication, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your own circumstances should always be sought separately before taking any action.

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