TUPE and Employment Contract problem.

[HedgeHog68]

Hi All,

I wonder if anyone can help me regarding a TUPE and employment contract issue.

Background:-

I started work for company ‘A’ back in 1996, In 2001 I learned that I company ‘B’ was going to be my new employer. At the time they said we could not have continuation of employment, however, we were still working at the same premises, with the same people (there were only 3 of us), on the same projects. I have been employed at company 'B' since 2001 to the present day.

Company ‘B’ have lost a major contract of which I am part of, and I am informed that I am on the TUPE list.

The Problem:-

I dug out my original contract for company ’B’, and on the front of the contract it states “No other previous employment counts as continuous employment for any statutory purposes.”

Question:-

Does this mean that I have lost the first 4.5 years working for company ‘A’?

Is it legal for them to write that into a contract when TUPE should have been in force?

And as I have signed that contract does this mean I have no form of redress?

 

 

Any help would be appreciated.

 

Thanks.

 

B.

[honeybee13]

Hello and welcome to CAG. This is tricky, isn't it? I don't pretend to know the answer, but hopefully one of our gurus will be along later. I don't think it sounds fair at all. But are you saying they didn't go through the TUPE procedures in 2001?

 

No-one challenged it at the time, did they?

 

Is company B large or small and is there an HR department please?

 

If you want to check out some details for yourself, try the directgov and ACAS websites on TUPE. They have a lot of information on both sites, and you'll find ACAS's phone number, if you want to ring the confidential helpline.

 

My best, HB

[HedgeHog68]

Hello and welcome to CAG. This is tricky, isn't it? I don't pretend to know the answer, but hopefully one of our gurus will be along later. I don't think it sounds fair at all. But are you saying they didn't go through the TUPE procedures in 2001?

 

No-one challenged it at the time, did they?

 

Is company B large or small and is there an HR department please?

 

If you want to check out some details for yourself, try the directgov and ACAS websites on TUPE. They have a lot of information on both sites, and you'll find ACAS's phone number, if you want to ring the confidential helpline.

 

My best, HB

 

Hi,

 

Thanks for the response

 

In 2001 nothing about TUPE was mentioned, and to be honest I knew nothing about TUPE until quite recent.

 

Compsny B has no HR department, it used to be quite a large company but has shrunk a lot over the last few years.

 

I may give ACAS a call to find out their point of view too.

 

Thanks

 

B.

[honeybee13]

I don't suppose you're in a union, are you?

 

Btw, someone else on the forum has a few colleagues who are also affected, in their case by a works closure. They going to see a solicitor tomorrow. Are any other colleagues affected?

 

HB

 

HB

[HedgeHog68]

I don't suppose you're in a union, are you?

 

Btw, someone else on the forum has a few colleagues who are also affected, in their case by a works closure. They going to see a solicitor tomorrow. Are any other colleagues affected?

 

HB

 

HB

 

We are not in any union and there is just the 3 of us in the same situation.

 

Thanks

 

B.

[Sidewinder]

This sounds highly suspect, but should really have been clarified back in 2001.

 

If you don't mind saying, could you be more specific about the nature of your job, as there are circumstances where TUPE does not apply? Your statement regarding the loss of a contract makes me suspect that yours may be one of those.

[HedgeHog68]

This sounds highly suspect, but should really have been clarified back in 2001.

 

If you don't mind saying, could you be more specific about the nature of your job, as there are circumstances where TUPE does not apply? Your statement regarding the loss of a contract makes me suspect that yours may be one of those.

 

Hi,

 

I'm an analyst/programmer.

 

Prior to 2001 we were working on software for Company 'B', we were told at the time that no employment continuity would happen.

 

Regarding the current TUPE list. A global company is taking over a large contract before the contract has ended. So its not like a normal end of contract and tender. I am being told by the directors that TUPE does apply in this situation.

 

I guess the main point for me is wether they were allowed to state what they did on my current contract and because I have signed it means its just tough luck.

[Bigredbus]

Hi,

 

When an undertaking is transferred, TUPE 2006 provides that any contract of employment of any person employed by the transferor and assigned to the undertaking shall have effect as if originally made between the person so employed and the transferee (TUPE 2006, reg 4(1)).

 

The exception to the above is where the transfer to the transferor is subject to either relevant insolvency proceedings or bankruptcy proceedings.

[Sidewinder]

BRB is correct, but in answere to your question regarding your current contract, it is almost inevitable that having signed it and having worked under it's terms for several years, you would be deemed to have accepted it. You are however still entitled to ask the question now, as a dispute over length of service may well be relevant to the transfer on this occasion.

 

I would suggest that you put the question in writing, expressing concern that you seem to have lost several years of service up to the last change of employer, and cannot recall ever having been made aware of this. That should at least let you know why TUPE was not relevant to your original transfer.

[HedgeHog68]

Thanks for the replies,

 

I'll pt it in writing to find out why.

 

thanks again

 

B.