## Implementation Of Transfers Through Staff Transfer Schemes, Orders Or Other

What senders and receivers need to do 

## Contents

1. Introduction 
2. Transfer Schemes  
a. What is a Transfer Scheme b. Who is covered by Transfer Schemes c. What are the elements that will be included d. Roles and responsibilities 
e. Explanation of clauses f. The process  
3. Transfer Orders 
a. What is a Transfer Order b. Who is covered by Transfer Orders c. Roles and responsibilities d. Informing staff e. The process 
4. Staff not covered by TUPE, Transfer Schemes or Orders 5. Board authorisation of staff transfers 

## Annexes

1 
Schedule 23 
2 
Sample Transfer Scheme including clauses 
3 
Transfer Scheme templates 
a. Employer to employer template b. Receiver additional clauses template and process steps c. LA Receiver additional clauses template and process steps d. Staff transfer assurance between senders and receivers 
4 
Useful contacts and links to additional information 

## 1. Introduction

This guidance is intended for employers who are acting as senders and receivers for staff transfers under the Health and Social Care Act 2012 health system reforms. Contracts of employment can only legally be transferred between employers, enabling continuity of employment to be preserved, if either the transfer situation falls within the scope of the TUPE regulations, or there is a transfer situation falling outside that scope AND there is a statutory power to effect that transfer by way of Transfer Order or Scheme. 

 
In normal circumstances where TUPE applies, no other legal mechanism would be needed to effect a transfer. However, a policy decision has been made to enact Transfer Schemes or Orders where there is a legal power to do so. The advantage of this approach is that it ensures a consistency of approach for the majority of transferring employees affected by the health system reforms. 

## Purpose Of Guidance

Given this, the purpose of this guidance is to enable Sender employers to understand their roles and responsibilities in relation to the practical steps and any legal requirements for effecting the transfer of their employees. This guidance aims to simplify these by setting out a step-by-step process for implementing them. There are organisations which are not covered by Transfer Schemes, Orders or TUPE [refer to section 4 below]. This guidance sets out some of the available options for transitioning employees in this situation, although decisions on which approach to take will be made by the relevant receiver(s) and sender(s) on a case-by-case basis. 

 

## Context

The Health and Social Care Act (HSCA) 2012 makes provision for staff transfers between bodies listed in schedule 23. The Act provides the power to effect transfers by way of a Transfer Scheme. The NHS Act 2006 makes provision for staff transfers between current NHS bodies. The NHS Act 2006 states that these transfers will be enacted by a Transfer Order. Both Transfer Schemes and Transfer Orders will be aligned with the national Filling of Posts in Receiving Organisations Policy. Where a sender or a receiver is not listed in schedule 23 of the HSCA but they are covered by the NHS Act 2006 and it is appropriate to use those powers, Transfer Orders will be used to transfer staff. Annex 1 lists organisations covered by Transfer Schemes (schedule 23). 

## 2. Transfer Schemes A. What Is A Staff Transfer Scheme?

The power to make Staff Transfer Schemes under the HSCA belongs to the Secretary of State for Health (SofS). The schemes will be drafted by DH lawyers and signed on behalf of the SofS by a senior civil servant in DH. The schemes will contain a schedule which identifies the forename, surname and NI number of each transferring employee. The documents are not published and will be held confidentially by DH (they contain personal data about the employees transferring which would need to be redacted if ever disclosed to third parties). There are no statutory timetables or consultation periods linked to the transfer schemes themselves. 

Whilst the wording in the Transfer Schemes will read across to the Filling of Posts in Receiving Organisations Policy, it will be written using legal terminology. 

 
b. Who is covered by a Transfer Scheme Organisations listed in schedule 23 of the HSCA 2012. See annex 1. 

 

c. What are the elements of a Transfer Scheme 
 
 Name and legal address of current employer 
 Name and legal address of new employer  Name and NI of each individual member of staff designated to 
transfer 
 Core clauses which cover appropriate protections for employees in 
relation to the transfer of their contract of employment 
 Any "other" clauses - that maybe considered appropriate 

## 

d. Roles and responsibilities 
 
 DH has overall responsibility for developing the clauses and signing 
off the Transfer Schemes on behalf of the Secretary of State. 
 **Receivers** are responsible for identifying any organisation-specific 
issues, e.g. access to a specific pension scheme. It is not 
anticipated that there will be many receiver-specific issues that 
need to be drafted as clauses (see 2e below). Receivers are also responsible for complying with statutory information requirements. If receivers agree with their senders any local processes for completing the Transfer Schemes, they will be responsible for communicating and overseeing them.  
 **Senders** are responsible for the transfer of their staff, which means 
they will be responsible for confirming that none of their staff who should be on the Transfer Scheme have been missed and that 
those listed are shown as transferring to the appropriate receiver. They will be responsible for agreeing this with the relevant receiver(s). They are also responsible for confirming to their staff 
whether a Transfer Scheme or Transfer Order applies as well as  
complying with any statutory information and consultation requirements. 

## E. Clauses

The clauses set out in annex 2 define what underpins the transfer of contracts of employment. The clauses are aligned with the Filling of Posts in Receiving Organisations Policy. Specifically these clauses enable the smooth transition of staff by ensuring that they move from their current organisations to the new organisations/Local Authority with the protection of their existing terms and conditions of employment and their continuity of service intact. 

 The clauses set out in the Transfer Scheme do not affect individual rights in a situation where TUPE does apply. There are also clauses that relate to pension provision, which are likely to be specific to each receiving organisation.  
 
Regardless of the basis of the transfer senders and receivers should consult with staff or unions in the normal way if there are going to be any changes to non contractual working arrangements that will apply after the transfer (e.g. change to work location or changes to pay dates or annual leave years). 

## F. Data Collection And Storage

 The only staff data required from senders will be the names and NI 
numbers of transferring staff, which will be used to populate the schedule contained in the Transfer Schemes.  This data is required to ensure staff are uniquely identified and put into the relevant Transfer Scheme 
 This information will be collected from senders by the DH People 
Transition Team.  Senders will be asked to provide this data using 
the "confirmation of details of transferring staff template" at annex 
3c 

 The Transfer Scheme documents are not published and will be held 
confidentially by DH. Further information on data protection can be 
found in the Data Sharing Guidance on the HR Zone. 

## G. The Process

This process aims to ensure: 

 All statutory obligations are met to enable the legal documents to be 
drafted as required;  
 There is appropriate governance, including a robust audit trail of 
decisions and changes;  
 All transferring employees are included in the relevant Transfer 
Scheme;  
 All parties are clear about the terms of the transfer and who's 
included in it; 
 The transfer can be legally effected. 
 
There will be two Transfer Schemes for each transfer - one for staff who are to transfer and one for property, and assets and liabilities that transfer. In order to ensure staff are appropriately and fully considered, senders and receivers will need to work through separate processes and in some cases complete different templates for each of these Transfer Schemes.. Where possible the timelines for the Transfer Schemes will be aligned, but some may be different. The following steps: 

 Are interdependent and could be running concurrently at certain 
points through the process 
 All need to be completed to effect the transfer 
 Cover all required activity and therefore might not be steps senders 
or receivers need to undertake, but need to be aware of 
 Are not just about the Transfer Schemes themselves, but cover 
broader transfer activity senders and receivers will need to undertake, excluding operational work such as due diligence, staff 
records, pensions and payroll 
 Specify that the local governance senders and receivers need to 
assure the sign off of their staff transfers - for NHS bodies this should be through a Board meeting; local authorities will have their 
own arrangements.  All Senders will need to submit a template to 
this effect to the People Transition Team in DH to the timetable in 
step 4 below. 
 
The following steps do NOT: 

 Specify any local adaptation of the process to enable steps 1 to 4 
below to be completed. 

 

## Step 1 Complete List Of All Legal Employers (Sender

 

## And Receiver Organisations) And Details Of The

 

## Transferring Staff

Commenced 
a) Senders need to confirm the legal identity, 
and 
name and address of the current 
currently 
employer and by reference to the 
being QA 
transferring function, the legal identity, 
 
name and address of the future employer 
(receiver). DH will support senders in this 
 
exercise where possible by providing 
Ongoing 
senders with pre-populated templates, 
 
e.g. the name and address of receivers 
 
b) Senders continue to maintain their people 
tracker to inform step d below 
 
c) Template (page 25) to be completed by 
By 11th 
the senders with the details of individual 
December 
staff - name and NI number - transferring 
 
to a specified receiver 
d) Senders will be required to amend the 
Ongoing to 
template following the change control 
15th March 
process to be published by DH on 21st 
2013 
December 
 
Step 2 
DH confirms all clauses  
By 30th 
a) DH shares core clauses with the HRTPF1 
November 
(see annex 2)  
 
b) Receiver organisations identify any 
 

                                                
 

 
organisation specific issues related to 
 
their transfer, e.g. specific pension 
 
provisions not covered by the core 
 
clauses and discuss these with their 
 
partnership groups2 
c) DH / DH legal assesses whether these 
By 17th 
need to be addressed through specific 
December 
clauses and confirms.  DH revise all clauses as agreed 
From now 
Step 3 
Senders and receivers fulfil their legal 
until 
obligations to inform and consult with TUs 
February 
and staff 
2013 
This is a key dependency to enable the completion of staff transfers, but is not part of the Transfer Scheme process itself. This area of work also includes the due diligence exercise. Refer to the Practitioners' Guide on Transfers in 
the HR Zone at www.hrtransition.co.uk    
 
Step 4 
Sender and receiver agree the list of the staff 
 
transfers for governance & audit purposes 
By 21st 
a) DH develops an assurance process for 
December 
amendments to the list of staff transfers 
 
(see 1d above) 
 
b) Senders will need to agree their own 
governance and assurance process 
 
through their normal governance routes, 
 
such as the SHA Transition Governance 
 
Groups 
 
c) DH will expect all senders to send an 
Monthly 11/12/12 
updated employer to employer templates 

                                                                                                                                         
senders. Please note that LGA is representing LAs on national discussions regarding pensions.  If LAs identify any other issues they feel may need to be covered, this may be documented in the additional clauses template. 

15/1/13 
for monitoring purposes and enable 
15/2/13 
effective agreement by step 4f below 
 
working through the SHA Transition 
 
Governance Groups 
 
d) Detail of Transfer Schemes finalised 
By 12th 
March 
e) Senders finalise content of the people 
 
tracker, which should include ALL staff 
By 15th 
and agree a final assurance template to 
March 
confirm every transition route for all their 
 
staff 
 
By 27th 
f) Senders convene Board meeting to sign 
March 
off people tracker and Transfer Scheme 
 
g) Receivers formally confirm the transfer of 
 
staff to their organisation.  In NHS bodies 
 
this should be via a local Board meeting 
By 29th 
March 
such as the SHA Assurance Board; LAs 
 
will have their own arrangements (this 
 
must happen after step 4d above) 
 
h) Receivers notify senders that the transfer 
By 29th  
of staff has been confirmed 
March 
i) Senders and receivers submit the 
By 29th 
completed assurance templates to the 
March 
People Transition Team in DH. This will 
 
then be the *final* list of staff transfers. 
 
j) DH signs off the Transfer Schemes on 
By 31st 
March 
behalf of the SofS  
 

## How To Send Information To The People Transition Programme: A Separate E Mail Box Has Been Set Up For All Information To Be Included In

staff transfer schemes.  They are: 

 Transferschemesdhandalb@dh.gsi.gov.uk 
 Transferschemeslondon@dh.gsi.gov.uk 
 Transferschemesmidlands@dh.gsi.gov.uk 
 Transferschemesnorth@dh.gsi.gov.uk  Transferschemessouth@dh.gsi.gov.uk Please put in the subject heading, "Restricted Management" 
 
3. Transfer Orders 

## A. What Is A Transfer Order?

The SofS for Health has powers to make orders to transfer staff between certain NHS bodies under the NHS Act 2006. The staff transfer provisions are included in either the Establishment Order or Abolition Order of the Sender/Receiver. There are statutory consultation requirements linked to the establishment or abolition of an NHS body and this would include the staff transfer proposals. Time needs to be factored into the legal and administrative process for transfers under this mechanism for the statutory consultation to be completed. Additionally, the orders will be public documents and need to be laid at least 28 days before they are intended to come into force. Transfer Orders will not include details of individual employees because they are published documents and accordingly staff transferring in these circumstances will need to be informed by a letter from the Sender (by the date stated in the order) that they are to transfer. The wording of these letters will aligned with the Filling of Posts in Receiving Organisations Policy. 

 
b. Who is covered by a Transfer Order Certain NHS bodies under the NHS Act 2006. See annex 1. 
 
c. Roles and responsibilities  
 
 DH has overall responsibility for developing the template letter to 
staff. They are also responsible for ensuring that statutory consultation takes place and that Transfer Orders are completed and laid before parliament in time for the transfer (28 days prior to the transfer date). 
 **Receivers** are responsible for identifying any organisation-specific 
core issues that are not adequately addressed through the core clauses, e.g. access to a specific pension scheme. It is not 
anticipated that there will be many receiver-specific clauses (see 3e below). 
 **Senders** are responsible for the transfer of their staff, which means 
they will be responsible for confirming the legal basis of the transfer to their staff through the Transfer Order staff template letter ('trigger' letter). As staff are not listed in a Transfer Order a trigger letter is 
required to effect their transfer. 
 

## D. Informing Staff

 
The Transfer Orders say that staff will be notified by letter if they are to transfer to one of the receivers covered by the orders.  The letters can be sent at any time before the transfer but once letters have been sent to affected staff these staff will transfer because the Transfer Order says they will. Senders must therefore take care not to send a letter before they are clear about the transfer and have consulted on the specific terms of the transfer, nor should they send any letter, which is ambiguous about its intent.  A template letter can be found on the HR 
Zone. 

 

## E. The Process

 
The first step, which has already been completed in the majority of cases, is to consult on the Transfer Order and lay it before parliament 28 days before it comes into force.  

 The final stage of the transfer process for Transfer Orders will be 
simpler than for Transfer Schemes.  Once the staff list has been finalised they will simply need to be sent a 'trigger' letter notifying them about the transfer (a template letter can be found on the HR Zone). The main requirement at this stage is to send a complete and agreed of staff who will be sent letters confirming their transfer under a Transfer Order. Senders should therefore follow process step 3 and the sign off of the people tracker in process step 4c above as well as sending the template letter to affected staff by 31st March latest. It is recommended that this letter is sent in advance of this date to allow for objections and any associated appeals processes. 

## 4. Staff Not Covered By Tupe, Transfer Schemes Or Transfer Orders

There are organisations that are not included in schedule 23 of the HSCA 
and nor are their organisations covered under the NHS Act 2006, e.g. universities or Foundation Trusts. There are a number of options currently being considered for how these transfers can be effected. Decisions on which approach to take will be made by the relevant parties, including receiver(s), sender(s) and employees where appropriate on a case-by-case basis. 

 

## Annex  1 - Schedule 23

| Sender                                            |
|---------------------------------------------------|
| The Secretary of State                            |
| The National Health Service Commissioning         |
| Board                                             |
| A clinical commissioning group                    |
| A local authority                                 |
| The Care Quality Commission                       |
| Monitor                                           |
| A Special Health Authority                        |
| A Primary Care Trust                              |
| Any public authority which provides services as   |
| part of the health service in England             |
| Any other person who provides services as part of |
| the health service in England and consents to the |
| transfer (such as NHS Trusts and FTs)             |
| A qualifying company (such as NHS PS)             |
| Any person with whom the Secretary of State has   |
| made, or has decided to make, an agreement        |
| under section 12ZA(1) of the Mental Health Act    |
| 1983                                              |
| The Secretary of State                            |
| A Strategic Health Authority                      |
| The National Health Service Commissioning         |
| Board                                             |
| A clinical commissioning group                    |
| A local authority                                 |
| Sender                                            |
|---------------------------------------------------|
| The Care Quality Commission                       |
| Monitor                                           |
| A Special Health Authority                        |
| Any public authority which provides services as   |
| part of the health service in England             |
| Any other person who provides services as part of |
| the health service in England and consents to the |
| transfer                                          |
| A qualifying company                              |
| Any person with whom the Secretary of State has   |
| made, or has decided to make, an agreement        |
| under section 12ZA(1) of the Mental Health Act    |
| 1983                                              |
| The Special Health Authority                      |
| The National Institute for Health and Care        |
| known as the National Institute for               |
| Excellence (established under section 232)        |
| Health and Clinical Excellence                    |
| The Special Health Authority                      |
| The Health and Social Care Information Centre     |
| known as the Health and Social                    |
| (established under section 252)                   |
| Care Information Centre                           |
| The Special Health Authority                      |
| The National Health Service Commissioning         |
| known as the NHS Institute for                    |
| Board                                             |
| Innovation and Improvement                        |
| The National Health Service Commissioning         |
| The Special Health Authority                      |
| Board                                             |
| known as the National Patient                     |
| Safety Agency                                     |
| The Health and Social Care Information Centre     |
| The Special Health Authority                      |
| The Health and Social Care Information Centre     |
| known as the NHS Business                         |
| Sender                                            | Permitted Receiver     |
|---------------------------------------------------|------------------------|
| Services Authority                                |                        |
| A Minister of the Crown                           |                        |
| The Appointments Commission                       |                        |
| A Special Health Authority                        |                        |
| The Secretary of State                            |                        |
| The Health and Care Professions Council           |                        |
| A person authorised by the Secretary of State     |                        |
| under subsection (5)(b) of section 67 of the Care |                        |
| The General Social Care Council                   |                        |
| Standards Act 2000 to exercise functions of the   |                        |
| Secretary of State under that section             |                        |
| Any other person who carries on activities in     |                        |
| connection with social work or social care work   |                        |
| The Health Protection Agency                      | The Secretary of State |
| The National Health Service Commissioning         |                        |
| Board                                             |                        |
| The Health and Social Care Information Centre     |                        |
| The Secretary of State                            |                        |
| A Special Health Authority                        |                        |
| A qualifying company                              |                        |

## Annex 3 - Transfer Scheme Templates A. Employer To Employer Template Legal Entity Name & Address For New Receiving Organisation

 Receiving Organisation:  
Receiving Organisation:  
Public Health England Employer Address:  
5th floor 
Health and Social Care Information 
Centre Employer Address:  
1 Trevelyan Square 
Wellington house 
Boar Lane 
133-155 Waterloo Road 
Leeds 
London  
LS1 6AE 
SE1 8UG 
 
 
Receiving Organisation:  
Receiving Organisation:  
National Health Service Commissioning Board 
NHS Property Services Limited Employer Address:  
4th Floor, Skipton House 
(Also for National Improvement body & 
Leadership Academy) 
80 London Road London Employer Address:  
Quarry House 
SE1 6LH 
Quarry Hill 
 
Leeds 
 
LS2 7UE 
This is for all appointments to CB whether it is local, regional or national. 

 
Employer names and addresses are not required; neither are employees going to HEE (LETBs) or NTDA, as this will be by a transfer order.

## Receiver-Specific Issues Template Receiver Template Issues

The following template is for receivers to complete to set out any required additional receiver-specific clauses, e.g. pension provision. The form should be sent to TPIPOmapping@dh.gsi.gov.uk. Once the form has been received, the PTP team will consider whether the issues raised require additional clauses and are not measures and will revise the Transfer Scheme to include the relevant additional clause. Contact details……………………………….Date…………………………………………….. 

Please detail the issue you believe is not adequately addressed through the core clauses and the reason(s) why 
 
 
Confirm that this issue has been discussed and agreed through the relevant local partnership forum, including senders and trade unions by ticking this box 

## B. La Receiver Additional Clauses Template And Process Steps Local Authority Receiver Issues Template

The following template is for Local Authority receivers to complete to set out any additional 'other' clauses that may be necessary to include in the Transfer Schemes. Please note, these would only relate to a contractual issue where a variation is necessary to the core clauses.  Any non-contractual arrangements, e.g. such as change of location (where a mobility clause exists), changes to pay date or the annual leave year etc, would be dealt with through Local Authorities' own, usual consultation processes as a receiver organisation.  (Please note pensions issues are being dealt with in national discussions involving the LGA and trade unions so these should not be referred to below.) 
This form should be sent to localpublichealth@dh.gsi.gov.uk If you have any questions relating to 'other' clauses, please call the Department of Health (DH) Public Health Transition Team on 0207 9724205 on Tuesdays between 9.30am and 12.30 pm or Thursdays between 2pm and 4.30pm until 12 December 2012. Once the form has been received, DH will consider whether the issues raised require additional clauses and advise. 

## Please Detail The Issue You Believe Is Not Adequately Addressed Through The Core Clauses And The Reason(S) Why

 
Please confirm that this issue has been discussed through the relevant local partnership forum and agreed with the transferring employees trade unions on their behalf: YES / NO 

## C. Staff Transfer Assurance Between Senders And Receivers Confirmation Of Details Of Transferring Employees The Staff List For [Insert Name Of Sender] And [Insert Name Of Receiver]

1. The staff identified in the attached list are employees of [insert name of 
sender] and have been identified as staff who will transfer to [insert name of receiver] on the effective date of the Transfer Scheme for [insert name of sender] 2013. 
 
2. The attached list is drawn from the people tracker dated [date]. 
 
 Designated signatory on behalf of the sender [Insert name of sender] Signature: ……………………. Name:………………………….. Role:…………………………..  
 
Date: ………………………… 
Designated signatory on behalf of the receiver [Insert name of receiver] Signature: ……………………. Name:………………………….. Role:…………………………..  
 
Date: ………………………… 
 
The staff of the [insert name of sender] who will transfer to the [insert name of receiver] on the effective date are (alternatively, please attach a spreadsheet providing the required information): 

| Name    | NI number    |
|---------|--------------|
|         |              |
|         |              |
|         |              |
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|         |              |

## Annex 4 - Useful Contacts And Links To Additional Information

If you have any queries about the process or you need additional information, please contact TPIPOmapping@dh.gsi.gov.uk (putting Transfer scheme query in subject box) 
Filling of Posts policy http://www.hrtransition.co.uk/the-process/useful-resources  
HSCA 2012   
http://www.legislation.gov.uk/ukpga/2012/7/contents/enacted  
NHS Act 2006  
http://www.legislation.gov.uk/ukpga/2006/41/contents