I first noticed the change in the market a few years ago. Company A had outsourced the development of some very specialised software to Company B. Company B’s developers were specialists in a new but sought-after discipline. The contract set out both parties’ expectations that TUPE did not apply. But, at the end of the contract, Company A argued that TUPE did apply and that Company B’s tech staff should transfer over.
It was simply a naked grab for Company B’s tech staff. It was all the more surprising because, over the years, companies have tried as much as possible to avoid taking on other people’s staff.
So, other than boosting your No-TUPE-Here clauses, what can you do to hold on to your staff? Non-solicitation clauses are an obvious place to start so it’s worth checking your customer-facing contracts to make sure that they are included.
The next thing to look at is employment contracts. The rules against restrictive covenants will stop you getting 100% of the protection you want, but you should be able to get most of what you need.
You should also check the contracts of any temp staff that are supplied by an agency. They will all charge you a fee if you convert any temp staff to permanent recruits, but you should be able to negotiate the fee down, and then get it to adjust downwards automatically to reflect the number of years you have already paid for.