The Quality Contracts Schemes (Application of TUPE) Regulations 2009

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations make provision about the application of the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”) to employees of bus operators who are affected by the making of a quality contracts scheme.

A quality contracts scheme is a scheme made under powers contained in the Transport Act 2000 (“the Act”) under which a local transport authority determines the local bus network in the area to which the scheme relates. Where such a scheme is in place, local bus services can only (with some exceptions) be provided under quality contracts. A quality contract is a contract made by the local transport authority under which a particular operator is granted the exclusive right to operate specified services. The effect of the making of a quality contracts scheme may be that certain operators of local services in the area to which the scheme relates, if they are not awarded a quality contract, would have to cease providing services. Section 134B of the Act, inserted by the Local Transport Act 2008, provides for TUPE to apply so that employees transfer to a new employer where their former employer has ceased providing local services in these circumstances. These Regulations supplement the provisions in TUPE by making specific provisions relevant to the quality contracts scheme situation.

Regulation 3 defines the meaning of “principally connected” for the purposes of section 134B(4) of the Act. The employment of a person spending, on average, at least half of their working time in activities connected wholly or mainly with the provision of services affected by the making of the scheme is principally connected with those services.

Regulation 4 defines the meaning of “relevant information” for the purposes of these Regulations.

Regulation 5 enables an authority proposing to make a scheme to request relevant information from bus operators, and specifies certain time limits.

Regulation 6 enables the authority to issue a request for relevant information after the scheme has been made and specifies certain time limits.

Regulation 7 requires operators to provide the information requested under regulations 5 and 6, unless they do not have the information or it cannot be provided at reasonable cost.

Regulation 8 requires an authority to describe the allocation arrangements (which will identify which employees will transfer to which particular quality contracts) in any scheme which they make. Authorities are also placed under an obligation to consult employee representatives and operators about the proposed allocation arrangements, and to include information about the proposed allocation arrangements in the draft scheme submitted to the QCS board (which must consider and give an opinion on a scheme before it can be made) for consideration.

Regulation 9 makes separate provision for a situation in which an operator ceases providing affected local services before the coming into force of the relevant quality contract. In this situation, the authority may propose to procure a replacement operator at short notice to ensure that services continue to be provided. Section 134B(2) of the Act provides for TUPE to apply to employees who transfer to a replacement operator as a result. This regulation requires the authority to consult on the revised allocation arrangements which it proposes to apply to the transfer of employees in this situation, and to publish the revised allocation arrangements before either issuing invitations to tender for the contract to operate replacement services, or entering into the agreement in circumstances other than accepting a tender.

An impact assessment has been prepared and copies can be obtained from the Department for Transport, Great Minster House, 76 Marsham Street, London, SW1P 4DR. The assessment is annexed to the Explanatory Memorandum which can be found alongside these Regulations on the Office of Public Sector Information website (www.opsi.gov.uk).