Help/Advice - Employment Law - TUPE

[Confused247]

Hi all

 

I'm new to posting on here, it will probably be quite a lengthy post too so apologies in advance, and if you do read it all, thank you for your time.

I'm looking for a bit of advice on what to do next or who to speak to or any info you think may be of help.

 

My old company lost the lease on our office and were to make us redundant, I was sent a letter to be put at risk, we were consulted on what would happen next.

 

A week or so later my old company advised of a possible role to prevent me being made redundant, the other 4 guys affected were not interested but I was. Another week later one of our contracts served notice on the company, my company then served them a shorter (1 month) notice back leaving us all with less time to be consulted on what would happen next etc.... because of this the new role was taken off the table, they then advised 4 of us that we worked mainly on this contract and so we would TUPE across to the new contract.

 

I was customer service Team Leader working in central Manchester, easy access to work by car or public transport, 30 mins away by tram. I worked on all contracts, invoicing customers, quoting etc and this was not a role specific to the contract or set up to service the contract that was lost either.

 

We had a basic 121 with the new providers, to get to know each other (even though the new providers had not yet signed any deals with the customer we lost) I spoke of all the work I did and did not specifically speak of this contract so at this point the old company decided my other colleague worked on the contract too making it 5 to transfer, they told the new company that actually there were 2 admin people working on it!

 

My old company 2 days before transfer (earlier this month) asked us to sign statements advising what amount of work we did on this contract, I replied to advise I wasn't happy to do this, instead I emailed a statement advising my role was never set up for this contract and that being Team Leader I was second port of call for all customers, I advised I invoiced and quoted this contract because I was the only one in the north responsible for ALL invoicing and quotes, it just happened to be the biggest contract.

 

The new company decided to take 3 staff, the contract account manager, a service engineer and an install engineer, they couldn't understand 2 admin to be used on such a small contract, the old company pushed the new company again for a decision on me and my colleague and the next day they decided they would take me (the last remaining person is now being made redundant as the office in Manchester closed when we left - convenient!).

 

I was advised by email from HR that I should report to the new company the next week at their HQ near Huddersfield for discussions on what was to happen next (transfer was the previous Saturday) half hour after this email I was sent an email from the new company also advising the same, the email from the new company also advised that there was only a position available for a service engineer and that risks of redundancies may be applicable, no further correspondence from either and no mention of my new place of work.

 

So next week I attended in Huddersfield and was told that that would be my new place of work, the following day I attended again but wrote a letter of resignation based on relocation and advised the new company that no one had told me I would have to start travelling 80 miles a day (in total there and back)

 

My points are that I was not informed correctly of my new place of work (simple failure to consult/inform of changes), I and the team were never set up to service this contract and therefore TUPE should never have applied to me (Stobart, Seawell, Argyll), and relocation causing detrimental changes directly associated to the transfer causing me to resign which was unfair (Tapere, Abellio).

 

The new company called me recently advising they wanted me to keep them out of any tribunal and offered a sum of £1500 (this sum I've lost this month in pay anyway so I do not see it as being a sufficient amount of compensation) also I've lost 10 days holiday, 5 weeks' notice and redundancy pay of £1500, the new company say that those costs should be down to the old company to pay as the transfer should never have happened,

 

Now I'm confused as to whether to pursue a tribunal or what I should be expecting to happen next, taking the new company's offer would mean not bringing them up in tribunal which may affect the outcome? The old company I have not been in touch with, I see them as bullies and would prefer not to be the one to let them know I want to take this further and do not agree with it.

 

I've engaged ACAS and Workrep, Workrep haven't yet been in touch (although just found a fault with my landline so they could have!)

 

A guy from ACAS called and advised they don't represent, they can't give advice on what to do regarding what is a reasonable amount to be offered as a compromise agreement and that I have to call them back with a figure I would be happy with! He just kept saying "I've seen this before, I know what is going to happen, one will say it's them and the other will say it's them" what he basically was saying is "you tell me what you want and I'll ring them and say it" ........

 

I wanted to hear a strong voice, someone to tell me "It's OK, you don't have to worry, we can do this" ... Now I'm as stressed as ever!

Edited May 21, 2013 by Confused247
Re-added with personal info trimmed

[honeybee13]

Hello there.

 

I've put some paragraphs into your post to make it easier to read. The forum guys should be along later with advice for you.

 

My best, HB

[Confused247]

Thank you HB

[mariefab]

On what date did the 'transfer' take place?

 

Did you address your resignation to the old or to the new employer?

[Confused247]

Hi Marie - the transfer took place on 4th May - two days after notification, and I resigned from the new employer, making it very clear in writing that this was due to the material change (relocation) and not an objection to the transfer itself.

[mariefab]

As you weren't employed to work on this one specific contract I'm as doubtful as you appear to be that TUPE would have applied to your role.

However to be on the safe side I'd be inclined to name both employers as respondents in your ET1 and let the tribunal decide the TUPE issue.

If the Tribunal decides that there was a transfer both employers will be jointly liable for some of the claims.

If no transfer, just the old employer will be liable

I wouldn't accept a payoff from the new Company, just in case the Tribunal decides that there was a transfer.

 

Heads of claim should include:

Failure to elect employee representatives.

Failure to properly inform and consult.

Unpaid accrued holiday pay.

Unpaid notice pay.

Unpaid redundancy pay.

Constructive dismissal.

Unfair dismissal.

 

Gather together and keep safe any relevant documents that you have from the old and the new employer.

Submit your ET1 before July while employment tribunals are still free of cost.

[Confused247]

Thank you for the advice, much appreciated.

 

We were given the opportunity to elect a representative but we didn't, to be honest we didn't think it would happen as we didn't think the new company would agree to taking us, the confusion for me didn't help, first risk of redundancy, then a new role to save me from redundancy, then the role taken away, then TUPE! so don't think I can claim that point, I understand though, that as a result we should have been informed individually. I am looking into the other items you listed.

Thanks again