Whether you win or lose, there is a hidden risk to orthodontic tendering

Owners of orthodontic practices entering into the unknown territory of tendering for contracts need to be aware of TUPE. This is the Transfer of Undertakings Protection of Employment Regulations and, according to John Grant, specialist dental lawyer, it is also a legal minefield. He will be explaining TUPE when he makes his presentation during the Commissioning session at BOC 2018.


Originally intended to protect employees when businesses were bought and sold, the scope of TUPE was extended in 2006 to cover "change in service provider" and will apply to the tendering process.


John says: “If TUPE applies then there are detailed ‘inform and consult’ provisions in the regulations which must be followed – a failure to follow these rules alone will entitle an employee to claim 13 weeks’ pay.”


“Ignoring TUPE is foolhardy in the extreme.  If TUPE does apply then any termination of employees’ contracts of employment resulting from the transfer of employees will be automatically unfair and the employee will be entitled to substantial compensation.”


“TUPE is a legal minefield in the simplest of situations – when superimposed on the Orthodontic Tendering process it may be, for the unwary, a recipe for disaster.”


The basic legal position on TUPE as it applies to service change provision will be explained by John.  He will also highlight some of the key issues practitioners need to be aware of so they can prepare for any situation  - whether they win or lose. In fact, there is still a risk if you don’t put in a bid at all. If a practice-owner hasn't tendered but another business is taking over the service they have previously provided, TUPE will still apply! Practice-owners need to be prepared whatever.

He explains: ”These transfer of service provider situations are, to put it mildly, complex and have been the subject over the years of much dispute and case law. The financial consequences can be dramatic. Those who have been awarded contracts would be well advised to consider the potential impact before signing on the dotted line.”

So perhaps more than being aware of TUPE, the advice is to beware of TUPE!


Other speakers during the commissioning session are Richard Wood and Emma Childs, directors of Ascend Consultancy and specialist advisors on NHS contracting, Guy Deeming, Director of Clinical Practice and Brian Kelly of the Business Services Authority.

 View all Blogs