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Continuous Employment History & Redundancy Query - Please help


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Hi

 

I've recently received a written redundancy notice (to take effect in 3 months time) from the company I am currently employed by, as the department I work in is being closed down.

 

I originally joined the company just under 10 years ago, but in 2003, I was working within a department which was bought out by some of the senior managers & subsequently set up as a "new" company. All of the people who were working in the department at that time had to transfer to the "new" company under a TUPE agreement, something which many of us objected to, but had no union representation within the company to oppose this for us. (The company still does not have a union for employees)

 

When I asked whether it was possible to transfer back into another department that I had previously worked in, I was told that no staff were permitted to transfer into or out of the department I was located in. Consequently, I had to transfer across to the new company along with all my other colleagues.

 

In 2005, I returned to my original department at the company I am currently employed by. I was unable to return any sooner, as a reciprocal agreement was put in place by my current employer & the "new" company in 2003, which meant that there could be no transfer of staff between the two companies for a 12 month period after the "new" company had been established. After that 12 month period elapsed in 2004, there were no posts available, as the department I had originally worked in was fully staffed, so it was not until a post became available in 2005 that I was able to return.

 

My redundancy statement only confirms my date of commencement with the company as 2005 rather than 1998, so I am looking to discover whether I can back-track my employment start date to 1998 for redundancy calculation purposes? I have been told by my employer that this cannot happen, as the transfer to the "new" company in 2003 is classed as a severance in service with my current employer, even though this was against my will.

 

In addition to the above details, I had been interviewed for another role in my original department (which would have been a promotion for me) & I had been succesful in securing the role along with another colleague, whereby the role would be shared over a 12 month period - my colleague taking the post for the first six months & then myself to take the role for the 2nd six months. It was during the 1st six months that I was transferred into the department which was subsequently set up as the "new" company, so I was prevented from returning to the original department to have the opportunity of fulfilling the "promotion role". Does this classify as having restricted me from potential promotion & subsequent salary increase on unfair grounds? Also, as I had to transfer across to the "new" company against my wishes & through no desire of my own, can my current employer classify this as a "severance of service"?

 

I would be grateful for any input on these issues.

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Hi Tomboy and welcome,

 

If you have transferred with no break in service then your redundancy pay should be calculated from 1998. All service transfers with you no matter how many times you transfer.

 

The promotion aspect seems a bit more complex but I'm sure there will be plenty of advise forthcoming.

 

There doesn't need to be a Union at a company for you to join one!

 

Regards,

 

Paul.

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Guest grizzleguts

Hi, did you sign a new Employee contract when the new company took over?

If you did not, then when a company buys out another, they take all parts of the business, the staff, company debts etc, and all legal responsibility for the company and staff.

I would at the earliest opportunity phone your local ACAS office, explain the situation, and they will tell you if you have a case.

You can find the ACAS web site at

 

Acas - Home

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Hi Tomboy and welcome,

 

If you have transferred with no break in service then your redundancy pay should be calculated from 1998. All service transfers with you no matter how many times you transfer.

 

 

Sorry, I don't agree - perhaps I am reading it differently:confused:

 

The OP worked for Company A, starting in 1998.

 

In 2003, he was TPUE'd to Company B with the rest of his department.

 

In 2005, he moved back to Company A - which menat he effectively started a new job/contract as there is no indication that he moved back to Company A via TUPE.

 

Thus his service starts at 2005

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I agree. TUPE was effective one way and therefore the length of service was unaffected (1998-2003), however the OP had the opportunity to apply for a new post in his original company in 2005 and voluntarily went back there, leaving the 'new' company in the process. He did not return to his original employer as a consequence of a takeover or other transfer of the business so this would be treated as a break in service. The fact that there was a restrictive covenant preventing him from returning to his previous employer during the 12 months after the 2003 transfer is sadly irrelevant, for even if it had not been in place, any rejoining the original company would have been classed as a break in service as the companies had been separated.

 

Unfortunately although the original transfer was against the OP's wishes, and he appealed as was his right, this is again irrelevant in terms of redundancy calculation. The length of service was 1998-2003 with A, then 2003-2005 with B =7 years continued service as there was no break as it was a TUPE transfer, but the OP then broke the chain with the move back to B so has only 2 completed years.

 

Very unfortunate, but the employer is not obliged to consider the first 7 years. Best you can hope for is an 'enhancement' to your redundancy in view of previous good service and loyalty.

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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I've recently received a written redundancy notice (to take effect in 3 months time) from the company I am currently employed by, as the department I work in is being closed down.

 

How many people have been made redundant? If less than 20 then DDP must be followed if not then automatically unfair dismissal. If 20 or more were proper consultations carried out?

 

Either call ACAS or visit your local CAB

_____

David - Old & Retired

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Many thanks all of you for your responses - it's nice to get some advice from different angles :) .

 

I'm going to visit CAB today & will also contact ACAS (thanks for the link grizzleguts!).

 

Would like to know what anyone's views would be on the "promotion" issue? While I understand the TUPE would only have been effective one way, prior to being moved under TUPE, I had been interviewed for the promoted post in my old department in 2003 at Company A, but then was prevented to return to that department to carry out the promoted role, due to the pending transfer to Company B. As outlined before, when I moved into the department which was to be transferred & set up as Company B, we had no knowledge that this was going to take place. It was only after the announcement of pending transfer & TUPE in 2003 that we were then told it was not possible to transer back into an original department.

 

I should have been starting my 6 months in the promoted role in my original department in the same month that we were transferred to Company B in 2003. Is this not considered restrictive to my ongoing employment with Company A at that time in 2003 in any way, as I was not permitted to return to a promoted role I had already been interviewed for & been successful in getting the promoted role?

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