I could do with some advise on TUPE please. Luckily, I know a little, as I've had to deal with TUPE on 2 occasions within the last 7 years, but the current situation has thrown up a situation (or two) that I'm not sure about, so some clarification would be wonderful.

I'll try to keep it as brief as possible, and answer further questions if and when necessary.

My OH works in a public house, which is owned by a relatively large retail company, although this is the only pub they own. He's worked there for almost 3 years, although on a part time basis (full time work being difficult to find in the current climate). Approximately 12 weeks ago, the pub was put on the market to lease, and shortly after, the manager resigned. Following his resignation, my OH met with the owner, who agreed that OH would take over as full time manager. All the intimations were that this was a permanent position, and leasing it out wasn't what they really wanted. There were several meetings, all which had the same context, and we made plans and arrangements accordingly.

Last week, we found out, via the internet, that the business was 'sold'. The owner had gone back on his word. The new 'owners' will not want OH, as they want to operate the business themselves.

Yesterday, we were unofficially told that the existing owner is goingto find alternative employment for the existing staff, which we assume will be in the retail sector. OH has no experience in this sector at all. To top it off, OH has never been provided with any written employment contract or statement of particulars, which makes the situation more complex.

As far as I can see, as the business is being transferred, OH's job also transfers, but if the existing owner finds what he believes is alternative employment, how does that affect OH? We are 100% certain that if his job transfers, the new operators will just get rid of him. I've yet to find a publican that abides fully by employment law!

Similarly, although he's worked part time for 3 years, he has been working full time since the beginning of this year, which given that he was essentially given a job, which was then taken away again, I feel should be relevant.

The point that is confusing and worrying me, is the 'alternative employment' bit. I honestly don't know how this affects the situation, so would be grateful for any advice.

Thanking you in advance.

Hello and welcome to CAG.

The forum guys should be along over the course of the day with advice for you. Not everyone knows about TUPE, me included, so please bear with us until the people in the know are able to get here.

My best, HB

This conversation seems to be missing the key word "suitable" as in "suitable alternative employment" , which really only applies in redundancy situations - which this isn't. (yet).

I'd say OH transfers under his old terms (ie not manager as that is temporary acting up) and is then either kept on or made redundant.

Thank you Emmzzi. May I question why not he should transfer as Manager, as at several of the many meetings, it was made clear the position wasn't temporary, but permanent?

He should transfer retaining his current status and terms and conditions. Your problem will be proving the precise nature of his status in the absence of a contract. If he can prove that he is a full time manager then that is what he would transfer as, so wage slips, text messages, emails etc?

In either event the new 'owner' does not have a say. As a part of the due diligence in advance of acquiring the business TUPE should have been a consideration and your OH should have been consulted - he would be able to make a claim to an ET for any failure to consult, and could be awarded 13 weeks pay for this. Iif the new owners were to simply dismiss him or make him redundant after the transfer he would also stand a very good chance of making an Unfair Dismissal claim.

Although your OH could agree to be redeployed by the 'old' employer rather than transfer, this would be contrary to TUPE, as what should happen is for the employee to transfer and then for the new owner to agree a suitable alternative role if their position did not exist in the new organisation. If the role genuinely did not exist then your OH could, subject to a normal fair process be made redundant by the new employer, but to simply not wanting to take him on as they wish to run the business themselves would not be considered a fair reason for dismissal.

Thanks Sidewinder. That's as I thought. It's a very poor situation that his employer has gone against everything he said, without consultation, but I guess we all know that many businesses don't abide by the rules, the just do what they want.

It's a difficult one; if alternative full time employment is available, that would be the best outcome, even if it isn't how TUPE should work. Sadly, we know from previous issues that winning an ET is one thing, but actually getting any award actually paid can be another issue, as can finding alternative employment.

If he takes the new job does he lose continuity is back to probation again? Then no job, no payout is a danger. This needs clarified.

No Emmzzi, as his employer wouldn't change, just location. But given the underhand behaviour, there is the worry of alternative employment being found, or 'created', but then at a later stage, redundant. If an alternative offer is made, one thing is sure, we will ensure it is in writing! We are making copious notes of what has happened, and what is happening, just in case. Another ET is the last thing that is wanted, but we can only wait and see at the moment. Don't want to go in 'all guns blazing', just in case it all goes pete tong, and the transfer doesn't go through.

do make sure you have things in writing. this is no time to be trusting gentlemen's agreements!

Thanks Emmzzi. Today, Husband has been put in an impossible situation. Owner has been to see him, and confirmed (finally) that he has agreed a lease, and it's likely to go through in the next 4 weeks. There was no mention of TUPE, but he has directly told husband that there are plenty of jobs suitable at HO, and he'll make sure husband is OK.

Now obviously, TUPE or not, we want the best possible outcome, but now we have the dilemma of speaking up about TUPE, and risk annoying/upsetting the owner, no transfer and no other employment, or not speaking up, and trust him, only to find any alternative job isn't suitable or possibly even not forthcoming!

He needs to be very strong and absolutely forthright. Tell the (old) employer that legally his existing position is covered by TUPE and that strictly speaking he should insist on being transferred across with his length of service, current role and pay protected. The mere fact that he has not been consulted, nor it seems is being transferred across is sufficient for a viable ET claim and the employer will be very keen to avoid that. In the circumstances, whilst he appreciates that the employer is keen to look after him, he is sure that they understand the need to keep everything in writing, with written assurances that his existing T&Cs will be protected and any role offered should be suitable.

The alternative for the employer is that the sale could fall through of course in addition to having to defend a claim!

Sale falling through would be good!

There is something I've not been able to find in the regulations: I know that from Jan 2014, the timing of the transferor providing info to the transferee of staff, has been extended to 28 days, but I can't find if there's any time restraints for consultations with the staff. Is there one?

And also, there are a couple of youngsters, 17-18 years old that work part time, are they also covered by TUPE?

All employees are protected by TUPE, so the part-time colleagues would almost certainly be entitled to consultation and to be transferred.

There is no timeframe prescribed by TUPE, only that the incoming and outgoing employers have a duty to consult, individually where 10 or fewer employees may be affected, and collectively where the number exceeds 10.

ACAS have some information which may be useful here http://www.acas.org.uk/index.aspx?articleid=1655

I caution against taking up anyone's case by your own as they will not be there when it hits the fan.

Probably easier to make the young uns redundant straight after TUPE - at that age, and part time, it'll cost buttons.

Things are not looking good. Informally told today that the new owner wants to take over in 10 days time. There's still no consultations. But it's suddenly dawned on me that the outgoing employer has no excuse to not know about TUPE, they've taken over businesses themselves, several times! We really are in a no win situation!

A meeting has just been called, it is to take place 4 days before the transfer takes place. Is that a reasonable time frame? My instinct says it isn't, but without there being any specific time frame in the regulations, it could be down to personal opinion?

Is this an academic debate? Husband does not seem to want to make a fuss?

Is this an academic debate? Husband does not seem to want to make a fuss?

He's in a no win situation! He's generally not the type to make a fuss, but equally recognises that he can't sit back and be walked over.

Then he has to be clear if he expects to be TUPEd or is taking the new job on faith. What's his current decision?

They've come up with an 'alternative' job, which is, quite frankly, insulting! Supervisor in one of their retail outlets. He's never worked in retail, and has been in management positions for the last 15 years!

They've come up with an 'alternative' job, which is, quite frankly, insulting! Supervisor in one of their retail outlets. He's never worked in retail, and has been in management positions for the last 15 years!

Sure. But that's an opinion, not a decision. What is his decision? Or do you need more information for him to do that?

He's asked for more information: as he says, he needs to be seen to be exploring the possibility before making a final decision. But that decision is likely to be 'no, it's not suitable'.

so perhaps best for him to practice the "but I tupe over" conversation..?

Hi Tinkerb. Just seen ur post and thread. The feedback given by Emmzzi and Sidewinder is shrewd. May I also strongly recommend the following :

1) Speak to ACAS, a non-commercial organisation on their national helpline. 0845 474747 i think ; if not it's on search engines. Based on my own experience ACAS have some very good helpline advisors who can guide you and OH through your TUPE rights etc. If an ACAS helpline adviser has to deal with a tricky issue it gets (or you can ask for it to be) escalated to a more senior member of their team, which is extensive.

2) Clearly you are reading up on the law. Well done. Nowhere in the thread is the term "ETO reasons" mentioned. It may be relevant in the scenario you portray. As an intro it's reasonably well summarised inweb link below (some aspects of TUPE law have changed since, but as I far as I'm aware not ETO) :

http://www.out-law.com/page-448