Possible violation of TUPE laws

[Madamfluff]

I work for an artwork house that is based in Manchester, my role is Onsite support at a food manufacturer in Middlesex I liaise between the marketing staff and my company and work on a desk on the clients site I am the only employee of my company doing this and I work 5 days a week

 

In March we lost the contract and a new company would take over in July and I was advised verbally that my employment would continue with the new employer under TUPE.

 

As yet I have had one meeting with the new company and this was just to confirm my contract details I had nothing in writing to say that I would be TUPED until I complained to my existing employer who sent out a letter last week, and nothing was said in the meeting about my continued employment only that they were in the process of working out how they would service the client .

 

Now as I understand it the new company has to keep me on with the same COE but only IF the job that I do transfers ( in other word if the new company will have an on site person doing the job that I do) If not they will have to make me redundant.

 

Last week the marketing staff were introduced to an employee of the new company who is already doing work for them and will be on site 3 days a week the employee in question was introduced as an Account Director

( My Job title is Pack Change Manager)

 

I am due to have a meeting with the new company this week

 

Questions

 

If they had decided they only needed an on site 3 days a week should I have been offered the opportunity to reduce my days?

 

They made a point of asking me my age at the interview ( I am 54) so I am worried about age discrimination

 

I am on a three months notice period and if made redundant would prefer to have this as part of my payments as my travelling costs etc is £100 per week so I would be better of with the money then working out a 3 months notice period, can I insist on this

[evancosmo]

Hi there

 

Given that you work only for this one client, the regulations class you as The TUPE arrangements would be service provision changes and as such you are transferred to the new supplier automatically with your existing contract, terms & conditions.

 

The only window for the new supplier to change your t&c's or to let you go would be due to an "economic, technical or organisational reason entailing changes in the workforce".

 

So in answer to your first question; yes, if they are only providing on-site services three days a week as part of their contract, this should have been offered to you first.

 

This is a lovely big loophole that I can imagine the inscrupulous making the most of.

 

Secondly, the age question is worrying. No valid reason for them to ask this.

 

Finally, no you can't insist on the pay in lieu of notice. If you refuse the transfer for whatever reason you are deemed to have resigned & no redundancy payments are payable. You don't mention how long you've been with your employer but aged 40+ statutory payments are a week & a half's pay for every year's service (provided you are more than 2 years in post naturally). I'd suggest caution when exploring this as you don't want them to misconstrue anything & assume you're rejecting to be transfered.

 

Hope this helps a little; personally I'd get on the phone to Acas or someone

 

Good luck!

[Madamfluff]

Thanks for your answer

I will wait for my meeting and see what they say

My existing employer is also a bit worried they asked my age

[callumsgran]

Thanks for your answer

I will wait for my meeting and see what they say

My existing employer is also a bit worried they asked my age

I'm not being funny, but do you maybe look older than you are?

They might be thinking you're not far off retirement age or on the other hand you might look so young they think that you'll be around for ages yet or maybe they think you're younger than you are and you wont have too many problems finding work elsewhere

[pompeyfaith]

when i was tuped my employer paid my solicitor fees worth looking in too

[Madamfluff]

I'm not being funny, but do you maybe look older than you are?

They might be thinking you're not far off retirement age or on the other hand you might look so young they think that you'll be around for ages yet or maybe they think you're younger than you are and you wont have too many problems finding work elsewhere

 

I do look younger than my age but that may not mean I can easliy find a job if made redundant

 

My husband is 60 looks 50 but has been out of work since march

[Guest Old_andrew2018]

Sorry can you clarify something, you say the company you work for lost the contract, and the new company is offering you a position.

The reason I ask is I wonder if this is really covered by TUPE, the new company are not taking over a business they simply have tendered for and awarded the contract, and could just replace you without having to do anything.

You could send a PM with a link to your thread to one of the forum contributers with HR experience.

 

Andy

Edited July 7, 2009 by old_andrew2007

[Madamfluff]

Sorry can you clarify something, you say the company you work for lost the contract, and the new company is offering you a position.

The reason I ask is I wonder if this is really covered by TUPE, the new company are not taking over a business they simply have tendered for and awarded the contract, and could just replace you without having to do anything.

You could send a PM with a link to your thread to one of the forum contributers with HR experience.

 

Andy

 

The company I work for has lost the contract but I have been told in writing that I am covered by TUPE, however the new company has not told me if I have a job with them or wether they are just going to be responsible for my Redundancy payment

 

If they are having an onsite ( someone doing my job) then it seems that they have already decided to use one of their current employees instead me

 

I am not sure who to PM on this forum but thanks

[Guest Old_andrew2018]

Hi

sorry about the late reply, I am aware of the following members they are elche, ell-enn, and sidewinder,

 

Andy

[elche]

Hi Madamfluff,

 

Briefly, I don't have a great deal to add to evancosmo's earlier post at this stage.

 

Seems that this could be a service provision change.

 

One thing is for certain TUPE either applies or it does not - it is not for the tranferor or transferee to decide this - it is a question of fact in each case.

 

Thus assuming this is a SPC covered by TUPE, then on the effective date of transfer you become an employee of the new company fact.

 

What is less clear is if the new company can bring your dismissal within the ETO exception if they do dismiss you.

 

Personally i think, it is your treatment after the transfer that you should seek advice on, and do come back when you are more certain what will happen after the EDT.

 

Che