A change in the weather: TUPE and the weather presenters
Katie Mahoney , October 28, 2016
Very interesting and informative article explained in a simple, concise and easy to understand manner. Thank you.
Read More Annette
November 08, 2016 11:05
What do the cases of BBC weather presenters and Bake Off hosts remind us about employment law?
Last month 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 became a popular topic – would some of Britain’s best-loved faces remain on our screens? Or would we have to get used to a whole new set of presenters?
The answer to this 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, those employed directly by the Met Office 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 the UK 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, 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 pensions).
The good news for Carol Kirkwood fans is that she is actually a BBC employee. This means 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 so we can still expect to see them on our screens. However, these presenters could object to transferring to MeteoGroup. This would mean 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 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. There is nothing a company can do to stop an employee leaving. As the individual’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 cough up cash after the transfer. However, this will not always work. Although probably not a TUPE scenario, Channel 4 is an example of where offering plenty of dough has not not proved successful. Although Channel 4 bought the rights to the Great British Bake Off, only one of the four presenters (Paul Hollywood) has agreed to remain with the show as it moves from the BBC to Channel 4.
Katie Mahoney is solicitor at Doyle Clayton