Tupe and redundancy

[tigger172]

Hi....Any advice on this would be much appreciated. My husband's contract has just been Tupe'd over and he has been told today that everyone's position in that office is at risk of redundancy. They have been told that from the end of April their jobs will be no more and they have to apply for one of the new jobs by next Tuesday to be considered. Trouble is the nearest job description to the job that he has at the moment is going to pay much ,much less and,like most people we are struggling anyway at the moment.

 

I thought that Tupe was meant to protect the workforce and I understand that many companies are making cuts but this company want to employ him to do practically the same thing (he wrote the description that he was handed today only last week!) for 5K less and lose the small annual bonus that he has had every year.

 

The company is advertising all these 'new' positions internally to the rest of the organisation. So they say that he has to apply for this job and if he gets it then great (for them:-x) and if not then he is redundant. They have said that there will be no voluntary redundancy package....I say 'they' but at no point today has an Hr person been involved and the manager breaking the news did not have the answers to some questions. My husband has got until 9am Tuesday to decide what job to apply for . If anyone has got any advice about the protection that is offered by a tupe transfer I would be very grateful. Also..when calculating redundancy pay will the company deduct tax from the notice part of his contract? Any help/hints and tactics would be fantastic ! Thanks in advance x

[postggj]

first question to ask is how many employees were tuped over, more or less than 20

 

the employer cannot state the jobs will be no more at the end of april until the consultation period is over

[Sidewinder]

Agree with the post above. At present, the post is 'at risk' of redundancy and to declare that the job WILL be made redundant prejudices the consultation, the purpose of which is to explore alternatives and to CONSULT over whether the redundancy can be avoided!

[tigger172]

Hi...it is a total of 8 employees tuped over...my husband has been tupe'd four times now....he has worked within the same firm for 12 years but his department has been outsourced . He was tupe'd again last Friday.

He has received a letter today stating that the consultation period will end on the 27th April. The letter states that they are looking to reduce headcount in his office by 2 and confirms that opportunities for him are minimal.

The letter goes on to say that if anyone wishes to volunteer for redundancy during the consultation period then he can apply and it will be considered.

 

My husband has been urged to apply for one of the 'new' positions...he recognised the job description straight away as he wrote his own job description last week and it is exactly the same...problem is it is 5K less and he would lose all his accrued benefits,length of service and go back to 20days holiday p.a.....

 

He has been given until 10th April to apply for this job-interviews will be held on the 11th.

 

Goes without saying really that my beloved is really unhappy tonight. In view of the tight deadline we would really appreciate advice from anyone who knows whether this is being done properly. I am wondering if we could fire off a letter tonight asking that he is considered for voluntary redundancy. If he asks to be considered for this would he be likely to get a better settlement than if it were compulsory? Any thoughts would be very welcome Thank you x

[Sidewinder]

Unfortunately there is no automatic right to voluntary redundancy, and even if they were to accept such a request, anything over and above Statutory redundancy would have to be negotiated. He is though under no pressure to accept an alternative position, whether he applies for it or not, unless it is deemed 'suitable'. What is suitable is not defined by the employer, but by the employee depending on their circumstances, and a loss of £5k a year would certainly be enough to render the alternative unsuitable if this drop in wages were to cause hardship. He could also accept any alternative position on a trial basis and still retain his right to redundancy. You also asked about the tax situation on the notice element of his contract, and that would depend on various factors. Firstly, would he be required to work the notice?How long has he worked there (total cumulative employment under the different owners?) Is there a clause in the contract which deals with pay in lieu of notice where notice is not worked?

 

Going back to the TUPE aspect. Does anybody at the firm which has taken over your husband's employer currently employ anybody to do substantially the same job as he does? Have they also been put at risk of redundancy? TUPE affords certain protection, a major part of which deals with redundancy where the redundancy is purely as a result of the transfer of business. Although the new employer can make redundancies providing that he can clearly demonstrate Economic, Technical or Organisational reasons involving a change in the workforce, he has to tread extremely carefully, not least because to only put at risk the 'new' members of staff smacks of redundancy due to the transfer itself.

 

So, a little more detail about the nature of the work, the role that your husband performs and the setup of the existing workforce might help to provide more clear advice.

[tigger172]

Also...just been advised by my husband that when someone asked about voluntary redundancy they were told that they would consider an application for voluntary redundancy a resignation !!!! I would laugh if it wasn't so scary. Suggestions on how to deal with this aspect would be welcome too. Despite the awful financial situation my husband would rather see what the redundancy 'package' was like . thank you

[Sidewinder]

Well they can't do that! A request is exactly that - a request, and unless the employee concerned said along the lines of '...or I will leave' then it cannot be taken as anything else.

 

I think that your husband needs to demand a 'meaningful' consultation - indeed that is his entitlement - and an opportunity to ask all of the questions that he needs to in order to fully understand his situation. Questions like 'Why Me?', 'When?' 'How much?' and 'Why is this necessary?' are all standard things to ask, but it is also an opportunity to make more searching enquiries regarding the fact that only 'new' employees are being selected, could a higher salary be negotiated for the 'alternative' vacancies, whether AND whether voluntary redundancy is an option.

[tigger172]

Thank you Sidewinder !!. He works within Operations Support for a Law firm.He is a manager in a small department,essentially it is specialist document management,e-bibles and litigation support. I think that the new employer,in an attempt to reduce numbers seriously thinks that they can merge this department with the print department but my husband disagrees,arguing that they are two separate things and should be treated as such and feels that they don't really understand what each department does.

[Sidewinder]

He needs to ask the direct question at his consultation, why, if the departments are to be merged, existing staff in that department are not also at risk of redundancy. If the employer is deeming that the work is substantially the same, then it is quite possible that the redundancy selection is flawed and any dismissal (redundancy) could be argued to be unfair.

[tigger172]

Thanks for all this advice..would you say then that the 5K drop in annual salary,proposed hours of work-instead of the current 8am til 6pm they want it to be 7am til midnight,no annual bonus,reduction in holiday entitlement etc would all be accepted as good reasons to decline to apply for the 'new' post that is the same as his current position? I think that he is going to apply for the higher paid post on offer-he can do that job but it is clearly not the position that they want him to apply for. Still we hope that by applying they can't say that he has effectively resigned. Although we have the Easter break to think about it I think that he would prefer to take the risk and take redundancy. Have you got any advice ? He wrote a letter last night to advise that he wanted to be considered for the voluntary redundancy outlined in their letter. They have said they may decline the request and I think they will. He is very experienced and knows the client inside out...but I thought it was worth a try!

[tigger172]

Hi ...I am sorry but being new to all this I don't know whether or not to continue with this thread ...as it is all to do with the same problem I will continue but please let me know if I have done the wrong thing

 

My husband has to let his employers tomorrow know which position he wants to apply for. His interview date/time has already been given to him...it is Wednesday morning. He is not applying for the job with the same job description as his current position as he wants and needs the higher paid position. If he doesn't get it then he will be made redundant. In the letter confirming that his job is 'at risk' it also confirms that this marks the start of the consulatation period. It also says that he can apply for voluntary redundancy and it will be considered but that they can refuse.

 

With regards voluntary redundancy when would be the best time to advise them that this is something that you would like them to consider? Once you state that you would like to be considered presumably they decide yes or no and if its a yes they give you details of what they would be prepared to offer you. We are also wondering if this 'would consider a request for voluntary redundancy' sentence is a compulsory line in such letters...any guidance much appreciated !

 

Many thanks

[Gbarbm]

Hi

Is your hubby a member of a union or professional body and if so are they involved with the potential redundancy at all?

[tigger172]

Hi...No I am afraid not on both counts

[Gbarbm]

Bit of info for you from the Business, innovation and skills website;

 

There is a statutory requirement for the Government to assist employees facing redundancy; in order to do this advance notification of potential redundancies is required from the employer.

Failure to comply with the statutory notification requirements without good cause may result in a fine of up to £5000.

The redundancy payments service (RPS) acting on behalf of the secretary of state for Business, Innovation and skills collects the information provided by the employer on form HR1 and distributes it to the appropriate government departments who offer job brokering services or training services so that thery can discharge their obligation to the employees.

The employer has some LEGAL obligations to comply with;

The Employer is required by law to notify RPS of a proposal to dismiss 20 or more employees as redundant at one establishment within a period of 30 days or 90 days for 100 or more redundancies.The minimum period for notification and consulatation is a least 30 days before the first dismissal.

The employer must notify RPS at least 30/90 before the first dismissal and before any notices of dismissaol are issued.

the Employer must send a copy of the HR1 to the representatives of the employees being consulted

 

The employer is asked on this form to provide details for the method of selection for redundancy and the reason for the redundancies e.g transfer of work to another site, INTRODUCTION OF NEW TECHNOLOGY, CHANGES IN WORK METHODS.

They also have to provide details of the trade union or elected representative with whom they have consulted.

[honeybee13]

Hello there.'Hi ...I am sorry but being new to all this I don't know whether or not to continue with this thread ...as it is all to do with the same problem I will continue but please let me know if I have done the wrong thing'Sticking with one thread is good, thank you. :)HB

[honeybee13]

Sorry about the spacing, having technical problems.

[tigger172]

Thank you to you both! We know that there have been some huge errors in the way the company have handled it and my husband is making notes of each development as it happens...Is the situation very different regarding a company's obligations if they intend to make only a couple of employees redundant? For a large company they have either been very stupid to put themselves at risk of potential tribunal action later or just don't care. I honestly think that (from what I have been told) they think they can move these newly tupe'd staff over to less beneficial contracts and that they (the new staff) will just put up with it given the current financial/work climate.

 

Have you any advice re request of voluntary redundancy? Any do's and don'ts or pros and cons would be greatly appreciated! Many thanks

[Gbarbm]

Sometimes the possibility of voluntary redundancy may be raised by an employee, or volunteers may be sought by an employer, long before any formal redundancy process takes place, and before the employer decides that it needs to dismiss particular categories or numbers of staff. An application for voluntary redundancy that is accepted in this context could be a resignation on the part of the employee or a true mutual agreement to terminate the contract; in other words, not a dismissal.

On the other hand, if volunteers are requested as part of a redundancy process, those who agree to go are likely to be treated in law as dismissals. As a result, statutory obligations are relevant, for example relating to consultation, statutory redundancy payments and notice periods, if applicable.

[RebeccaPidgeon]

Hi....Any advice on this would be much appreciated. My husband's contract has just been Tupe'd over and he has been told today that everyone's position in that office is at risk of redundancy. They have been told that from the end of April their jobs will be no more and they have to apply for one of the new jobs by next Tuesday to be considered. Trouble is the nearest job description to the job that he has at the moment is going to pay much ,much less and,like most people we are struggling anyway at the moment.

 

I thought that Tupe was meant to protect the workforce and I understand that many companies are making cuts but this company want to employ him to do practically the same thing (he wrote the description that he was handed today only last week!) for 5K less and lose the small annual bonus that he has had every year.

 

The company is advertising all these 'new' positions internally to the rest of the organisation. So they say that he has to apply for this job and if he gets it then great (for them:-x) and if not then he is redundant. They have said that there will be no voluntary redundancy package....I say 'they' but at no point today has an Hr person been involved and the manager breaking the news did not have the answers to some questions. My husband has got until 9am Tuesday to decide what job to apply for . If anyone has got any advice about the protection that is offered by a tupe transfer I would be very grateful. Also..when calculating redundancy pay will the company deduct tax from the notice part of his contract? Any help/hints and tactics would be fantastic ! Thanks in advance x

Not wishing to be pedantic..... but, given that in advance of the former organisation being taken over, the owner of the business would have presumably consulted the staff of prevailing changes if they were considered up to spec, they would have been aware of the likely impact of the takeover.

 

So, the takeover has occured, and rather than being made redundant, the staff have been asked to apply for jobs at a more realistic level.

 

My own advice would be for staff who have been made redundant to simply cut their losses.

[tigger172]

Not wishing to be pedantic..... but, given that in advance of the former organisation being taken over, the owner of the business would have presumably consulted the staff of prevailing changes if they were considered up to spec, they would have been aware of the likely impact of the takeover.

 

So, the takeover has occured, and rather than being made redundant, the staff have been asked to apply for jobs at a more realistic level.

 

My own advice would be for staff who have been made redundant to simply cut their losses.

Completely understand your points Rebecca Pidgeon but the fact is that there was no prior consultation save for each member of staff being told that their jobs were safe. I don't know what is considered the average salary for London but my husbands salary is probably well within the average range. Due to the 4 tupe transfers he has had over the last 12years whilst based in one company in London he has not had a pay rise...The contracts have always been taken over and every time he has been due for a review the contract goes out for tender again. He's stuck with it for several reasons but it has not been great. Meanwhile along with everyone else his season ticket costs as well as everything else has risen sharply. To say that the new jobs are benchmarked at a more realistic level simply isn't the case.

[Sidewinder]

Not wishing to be pedantic..... but, given that in advance of the former organisation being taken over, the owner of the business would have presumably consulted the staff of prevailing changes if they were considered up to spec, they would have been aware of the likely impact of the takeover.

 

So, the takeover has occured, and rather than being made redundant, the staff have been asked to apply for jobs at a more realistic level.

 

My own advice would be for staff who have been made redundant to simply cut their losses.

 

It isn't as straightforward as that!

 

TUPE makes it crystal clear that when a relevant transfer of undertakings occurs, employees being transferred to a new entity are entitled to legal protection of their Terms and conditions, length of service and the right not to be made redundant where the sole reason for redundancy is the transfer itself. An employer notifying employees of likely redundancies BEFORE the transfer would be on very shaky ground, and even after the transfer has to tread carefully to demonstrate that the redundancies are for a permitted reason which is not solely the result of the transfer.

 

One presumes that somebody already working for the 'new' employer already carries out a function which encompasses the role that the OP's husband currently performs, so if this is a substantially similar role, then that person too should be put 'at risk' and selection made according to specific criteria.

 

To cut losses, as you suggest would be to not fully investigate whether any dismissals are 'fair' which is rather defeatist??

 

So, to the OP, you need to look at whether the dismissal itself is fair in addition to the question of which alternative position is more suitable. Now regarding the vacancy that he intends to apply for, then loss of salary and any material changes to T&Cs would be sufficient to deem a position as unsuitable or unreasonable if they would cause a detriment to his circumstances, so, if he is applying for a higher paid position, then this is because the lesser one is 'unsuitable' and he could not be forced to take it.

 

They may ask him what he would do if he were not successful in getting the higher paid job, and he would be entitled to tell them at that stage that as this would leave no viable alternative then he would be asking for voluntary redundancy (ie rejecting any suggestion that he would be applying for the lesser role) if that is what he chooses. I must stress again though that if this 'interview' also forms a part of redundancy consultation, then he should ask all of the questions which he needs to in order to fully understand the situation. This should also include a question around the potential terms of any voluntary redundancy arrangement - after all if it offers nothing over and above compulsory redundancy then why should that even be a consideration? The purpose of VR would be solely to save the employer time and trouble in redundancy selection.

[tigger172]

Thank you so much ...he had wondered what response he should make if they ask at his interview the 'what will you do if you don't get it' question-now we know! Many thanks

[Sidewinder]

That this the only response that I can think of. If he were to go straight in and request VR, then the employer may think that he has little interest in an alternative position - by leaving it as an 'in case I am not successful' point to discuss, then it allows him to make his case that he is up to the more highly paid job, is committed to doing it to his best ability, and that it is a position that he MUST go for as he needs it to maintain his financial position. If he is not successful, then he will step aside and ask for VR in order to save the employer a little trouble.

[tigger172]

Hi again....

 

My husband has his meeting tomorrow with his manager to find out if he has been offered the job that he applied for following re-organisation after the tupe transfer. I have got to work out how many days the consultation period has been from start to finish (think that the consultation period started on 4th April) but should it ideally be a specific time or a length of time of the employers choosing?

 

If he is offered the job I believe he can accept and try it for a month and then if he says that he is unhappy after that month then he can be made redundant...is that right?

 

Also, if he is made redundant can he ask that they consider paying him the notice period part of the redundancy free of tax...the quote he was given showed this element was tax deductable....as it is 3 months notice it would make a big difference ......at the point of being told that you are redundant is it too late to have another go at negotiating a better package?

Many thanks in advance

Tigger

 

[tigger172]

Afraid that I have an update...my husband was made redundant. The consultation period started just before Easter and has just ended. He was made redundant with immediate effect and that was that...They have calculated a statutory payment that deducts tax from the notice period and have confirmed in writing that he won't receive this for 3 weeks. He has been told that he has a week to appeal against the decision to make him redundant. Their 'consultation period' was not really that-their letter confirming this stated that they needed to reduce headcount ...it was just a matter of who it was going to be. It seems that the person who has been offered the role that my husband applied for was in another part of the company and was at no risk of redundancy which makes me feel a bit fed up because three other decent candidates applied for this job and they were all at risk of redundancy.

Anyway...my husband feels that the whole thing was not handled well and wondered ,based on what I have said on this thread since this all started if anyone thinks he could have a realistic case against his former employer? Any views appreciated.....Thank you in advance x