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TUPE advice please?

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Hi forum,

This is my first post here. I would like to ask some advice concerning employment law. I have worked at the same place of work for many years, it's a pub which is brewery owned and tennanted. The tennant who I was employed with gave up the tennancy recently and we have a new landlord. The pub never closed and my employer changed when the new tennancy was signed.

 

My ex employed has issued all the staff, myself included P45's for the the tax year upto the date he left the pub and closed his business. My new employer has become aware that my former employer has issued these P45's and has said that we are now all new employees and our previous service no longer applies because we have been given P45 instead of P60's.

 

He seems to believe that we are now on probationary period terms and conditions, our former contracts not woth the paper they're written on with no service at all even though several employees have worked at the pub for over ten years.

 

Is this just wishfull thinking on his part or are we still covered by the TUPE legislation?

 

Any advice greatly appreciated.

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Absolute nonsense. On transfer of the tenancy, unless employed directly by the brewery, your employment transfers under the TUPE regs and you continue working under exactly the same terms as under the old tenant, and your existing length of service also transfers.

 

You MUST raise a grievance, so that there can be no assumption that you have acepted the situation, and start teaching your new employer a thing or two about the law. Either collectively or individually, the staff should write to complain at the lack of consultation under the Transfer of Undertakings (Protection of Employment) Regulations 2006, and the apparent disregard for your existing terms and conditions of employment. You each need an assurance that there is continuity of employment, and that nothing has changed regarding your jobs, hours or pay.

 

The P45 issue, although alarming is not in itself a problem. This does sometimes happen in certain transfers, but you do need to give the P45 to the new employer so that you are taxed correctly.

 

I would say that you shouldn't worry as you have a good degree of legal protection, but it sounds as though you need to be vigilant and pull the new employer up sharp if he thinks that he can just change things around.


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Thank you for your advice.

I was offered this advice by a poster on Moneysavingexpert.co.uk Employment forum by someone who said she is an Employment Lawyer. I take it you don't believe her advice is accurate.

 

 

"Sorry, it isn't wishful thinking on his part. TUPE probably does not apply - there are a lot of situations where it doesn't. The tenancy of a pub is a contract between the brewery and the tenant. Unless the tenancy agreement specifcially states that the tenant must take on the staff and liabilities of the previous tenant, then the tenant does not have to. And I very much doubt that any tenancy agreement would contain such a clause, nor do I believe it would be enforceable in law.

PS - It may be worth checking with the brewery though (quietly I would suggest), as I believe that you should certainly have been entitled to redundancy from the previous tenant - assuming you didn't get it, which you didn't mention. "

 

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I might just have to go and have a word!

 

Quote from the Scottish & Newcastle advice on tenancy transfers

 

TUPE: Transfer of Undertakings (Protection of Employment) Regulations (TUPE). Any staff in the pub you are taking over will be protected by employment law, which means, in essence, that you must employ those staff. You will be responsible for the pay and conditions of employees transferred to you and any employee claims or problems which the current lessee is experiencing as well as day to day issues such as outstanding holiday allowances.

 

From another Pub Company (Charles Wells)

 

What happens to the staff when I take over?

When you take over a tenancy the staff that employed in the business transfer and are entitled to work for you under the same terms and conditions as the previous employer under the Transfer of Undertaking (Protection of Employment) Regulations 2006 (TUPE). The outgoing tenant should provide you with all details, including rates of pay, hours worked etc.

 

That is just from a quick Google

 

The only variation is where there has been a break in the tenancy and staff under the old tenant were made redundant, otherwise employment is continuous.

 

From ACAS

 

The Transfer of Undertakings (Protection of Employment) Regulations (TUPE) protects employees' terms and conditions of employment when a business is transferred from one owner to another. Employees of the previous owner when the business changes hands automatically become employees of the new employer on the same terms and conditions. It's as if their employment contracts had originally been made with the new employer. Their continuity of service and any other rights are all preserved. Both old and new employers are required to inform and consult employees affected directly or indirectly by the transfer.

 

Which Transfers Are Covered?

TUPE applies when an undertaking or part of it is transferred from one employer to another, eg:

  • where all or part of a sole trader's business or partnership is sold or otherwise transferred
  • where a company, or part of it, is bought or acquired by another (if the second company buys or acquires the assets and then runs the business rather than acquiring the shares only)
  • where two companies cease to exist and combine to form a third
  • where a contract to provide goods or services is transferred in circumstances which amount to the transfer of a business or undertaking to a new employer.

TUPE can apply regardless of the size of the transferred undertaking, ie from large organisations employing thousands of employees to small businesses like a village shop with one assistant.

 

Which Transfers Are Not Covered?

TUPE does not apply to:

  • transfers by share take-over because, when a company's shares are sold to new shareholders, there is no transfer of the business: the same company continues to be the employer
  • transfer of assets only (eg the sale of equipment alone wouldn't be covered but the sale of a going concern including equipment would be covered)
  • transfer of a contract to provide goods or services where this doesn't involve the transfer of a business or part of a business
  • transfers of undertakings situated outside the UK.

  • Haha 1

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

 

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I'm not a legal expert, but it strikes me that, unless you can persuade your new employer that he is wrong, the way to sort this out is to let an Employment Tribunal decide.

 

You, or all the affected employees collectively, could make a claim under TUPE 15(1)(d) for breaches of TUPE sections 13 & 14; essentially failure to inform and consult.

 

In order to proceed a Tribunal would first need to decide whether a relevant transfer, TUPE 3(1), took place.

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