TUPE - Legal?

[willie59]

This is a little complicated. The company I work for has various offices around the country. A number of employees from different offices (including me) have been informed that we are likely to be TUPE’d to another company shortly. All the people involved, except me, previously TUPE’d into our current company from this company. They therefore are being ‘reverse TUPEd’. I am not sure if there are differences in the law between TUPE and reverse TUPE.

We have been informed that the company intends to move our jobs to another part of the country. Further, they have said that they are exempt from the TUPE rule about making people redundant within 6 months of the transfer. I am not sure if this is indeed legal.

The biggest issue I have, is that this company does not now have an office even remotely close to our current location (it did at the time of the original TUPE). They have said that from the day of the transfer onwards they want us to work from home (until they make us redundant). This does not sound legal to me?

Any advice would be welcomed.

[Sidewinder]

Originally Posted by willie59

This is a little complicated. The company I work for has various offices around the country. A number of employees from different offices (including me) have been informed that we are likely to be TUPE’d to another company shortly. All the people involved, except me, previously TUPE’d into our current company from this company. They therefore are being ‘reverse TUPEd’. I am not sure if there are differences in the law between TUPE and reverse TUPE.

No difference at all - an employee can be TUPE'd in and out out under the same sets of rules.

We have been informed that the company intends to move our jobs to another part of the country. Further, they have said that they are exempt from the TUPE rule about making people redundant within 6 months of the transfer. I am not sure if this is indeed legal.

There is no '6 month rule' - the regulations regarding TUPE make no specific provision for a set time period during which the new employer is prevented from making changes. The new employer can in fact make redundancies at any time, but has to be very careful in that he can demonstrate 'Economical, Technical or Organisational (ETO)' reasons for doing so. He may not make redundancies to discard surplus staff in order to save money, nor can he use redundancy as a means of harmonising two sets of staff - this is classed as dismissing staff 'due to the transfer itself'. What he can do though, and it would seem applicable in your case, is cite that there are ETO reasons 'entailing a change in the workforce', and providing that dismissals are conducted fairly, with proper consultation arrangements, notice or pay in lieu of notice and statutory redundancy payments made, then there is every chance that the dimissal would be deemed fair. Your getout in this situation, if there is a chance at all, is that the employer must demonstrate that the ETO reason for the dismissal would involve your function in the organisation ceasing, or that it is neccessary to reduce the number of people required to cover the work. Very difficult to prove though.

The biggest issue I have, is that this company does not now have an office even remotely close to our current location (it did at the time of the original TUPE). They have said that from the day of the transfer onwards they want us to work from home (until they make us redundant). This does not sound legal to me?

Possibly not, for if your contract under the current employer states a normal base to operate from then the new employer would either have to maintain such a base or provide the same equipment and facilities to permit you to function from home. This might be computer equipment, stationery, a consideration for heating and lighting, telephone - it depends on the nature of your employment and the extent to which you need an office or warehouse to operate from.

Any advice would be welcomed.

What you must make sure of is that you are being given adequate consultation over the change. You must be given the opportunity to ask all relevant questions and be given full responses. Your terms of employment must be maintained as if the transfer was not taking place, including any annual pay reviews or bonus payments which were made under the old employer (although the new employer does not have to maintain pension current arrangement, even though he must offer a similar scheme with similar levels of contribution). If redundancy is being considered then this is subject to additional rights which must be adhered to in order for the dismissal to be 'fair' in law.

[willie59]

Thank you for taking the time to reply.

As I said, my main question with regard to the transfer, is whether it is permissable under TUPE, to force an employee to work from home. There are no details in my current T&Cs relating to working from home. I am contemplating taking legal action against this transfer if they do indeed go through with this.