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TUPE and feel like being sold with the furniture


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Long explanation alert!

I work in licensed retail in a concessions environment. 3 weeks before xmas we were told that negotiations with the concession owners for renewal of contract with the company I work for had not been successful and a different company providing almost exactly the same offer would be taking the contract although we were not given a date as to when this would all be taking place, probably April sometime.

My line manager told me verbally at the time that his area manager had told him that TUPE regulations would apply and that if we wished we could TUPE over to the new company or if not then I would be able to stay with the current company and they would find me a position in another outlet (current company have almost 1000 outlets nationwide). I received the same information verbally from the area manager himself and was told not to worry about things.

Yesterday we had our first meeting with someone from head office personnel dept. and the story is totally different!

We have been given a date in 2 & a bit weeks time as the closing date, then at that time we will automatically become TUPE'd over to the new company and be working for them.

The only option we have been given to stay with the current company is to apply for a vacancy on the internal vacancy web site and get transferred in that 2 weeks!!. At no time has any mention been made of any redundancy package, it's been a case of 'you've got a job with them or you can resign from them'. basically it seems like we have been sold along with the furniture to the new company.

We have been told there will be a TUPE meeting with the new company but have not been told when and to phone that new company if we have any questions ( but were not given any contact details )

BTW my line manager is in exactly the same boat apparently and is dumbstruck! First time I have even know him not to know what to say or where to find out the information if he didn't know.

I know several people that work for the new company and they are not that good to work for and although I understand my basic hourly rate is protected, the whole package for the new company is significantly lower (no share scheme,bonuses,long service extra leave etc, all of which are non-contractual & discretionary so in my understanding are not protected)

I have been with the current company almost 5 years( in fact I gain 1 off of an extra 5 days holiday as a long service bonus 3 weeks after the close date and have been told I will lose that:|)

The new company will not be opening immediately as the unit will be redeveloped and the planned new opening date is in 2 months time, leaving me with nowhere to work for 6 weeks.

Strangely enough despite the way this has just been handled I want to continue with my current company, day to day they are great to work for, although that might just be because I have a good line manager.

So that's the background, now the questions:

1: Does my current company have any legal responsibility to find me a position within another of their units?

2: Should my current company be offering me some sort of redundancy package as an alternative to TUPE'ing over ( is that a word?) or is it just a case of sold with the furniture?

3: Does the new company have to honour outstanding holiday earned or should my current company be paying this as a lump sum on leaving?

4: I am on a zero hours contract (although I have consistently worked between 35 & 40 hours a week for my whole 5 years with the current company), so for the 6 weeks does the new company, if I TUPE over, have any legal responsibility to find me work or pay me?

5: Should the current company be giving me more time to attempt to find a position within their other units myself?

I know several of the managers at other units and I could probably get a position with one of them, but the head office person said it needs to be done before the closure and via the official internal job application process, interviews etc. (which takes weeks) otherwise it could be considered as the company discriminating against the other staff (i.e. why are they being transferred and not me).

Any help or advice would be much appreciated

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1: Does my current company have any legal responsibility to find me a position within another of their units?

No - TUPE means that you must transfer with the undertaking - the contract with Company A must automatically transfer across - although this may be changed by negotiation, it is not a given at all

2: Should my current company be offering me some sort of redundancy package as an alternative to TUPE'ing over ( is that a word?) or is it just a case of sold with the furniture?

No - there is no redundancy situation so this would not be lawful for so long as the function that you currently perform remains, albeit with Company B - the staff must automatically transfer with the relevant undertaking. Company B might make you redundant at some future point should there be a valid reason to do so, but not at the point of transfer and for so long as your position still exists.

3: Does the new company have to honour outstanding holiday earned or should my current company be paying this as a lump sum on leaving?

Your existing rights transfer with you, so holiday entitlement is protected

4: I am on a zero hours contract (although I have consistently worked between 35 & 40 hours a week for my whole 5 years with the current company), so for the 6 weeks does the new company, if I TUPE over, have any legal responsibility to find me work or pay me?

Yes - there would almost certainly be a valid Custom and Practice argument, but this is a point that you must clarify during the consultation period - it would depend on the 'obligation' to work and the nature of the hours worked - were they voluntary or expected of you? Were you able to (and did you) regularly decline work offered without any detriment?

5: Should the current company be giving me more time to attempt to find a position within their other units myself?

No - as stated you become their responsibility automatically at the date of transfer - there is no option to remain unless in very specific circumstances.

I know several of the managers at other units and I could probably get a position with one of them, but the head office person said it needs to be done before the closure and via the official internal job application process, interviews etc. (which takes weeks) otherwise it could be considered as the company discriminating against the other staff (i.e. why are they being transferred and not me).

Correct. If you are working under your current contract at the point of transfer then you cease to be an employee of Company A.

 

This is, if you like, the downside to TUPE - whilst it serves to protect you where a business changes hands, it can also not be the desired outcome for some. The discrimination argument can be a very valid one, as is one of a flawed consultation - your colleagues might well argue that you have been allowed to remain with Company A on what are perceived as better T&Cs and if grounds can be suggested that this was due to Age, Race, Religion etc then it might well be hard to defend. Equally, if Company A did a deal to keep you with them, and it later transpired that your colleagues now enjoyed significant advantages having been transferred, you might argue that you should have been given the opportunity to move also - the only safe way to remain is to apply internally for a vacancy that might exist which is not being transferred. You can refuse to transfer but that is treated as a resignation and you lose any continuity of service or potential rights to a redundancy payment.

 

You do need to clarify and affirm your employment status and contract terms before the transfer though - it needs to be understood and ideally in writing that you are obligated to work 30-40 hours per week otherwise you may find all sorts of problems later on.

 

The incoming employer is obliged to honour all contractual terms - with the exception of pensions (rights built up will be protected but the employer doesn't have to offer an identical plan), and this may well include terms acquired through Custom and Practice, for example certain benefits and bonuses. You need to negotiate and clarify those points during the consultation.

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

 

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Thank you for your very prompt, understandable and detailed reply, not what I wanted to hear but if that's the way the regulations are written.

You are right TUPE does seem to have an undesirable side in my case!

I have just been speaking to the line manager at another unit I know and he is more than happy to have me,an instant YES, however when I explained what I had been told about having to apply via the internal vacancy list because of TUPE his reply was that it would be a problem.

Internal vacancies take 2 or 3 days to set up, must be advertised for a minimum of 2 weeks and he must interview all applicants who meet the required criteria, which by my calculation puts it past the closure and thus TUPE date!

Also I would have thought he can't guarantee me the job, someone more suitable than me might apply (unlikely ! blowing my own trumpet ;)) and he would then have to justify why he chose me over them then, possibly opening himself up to problems.

 

TUPE means that you must transfer with the undertaking - the contract with Company A must automatically transfer across - although this may be changed by negotiation, it is not a given at all

Does this mean when I speak to the new company at the TUPE meeting I can request not to TUPE over and if both they and my current company agree I can continue with my employment with my current company? although thinking about it, my current company would be unlikely to agree would they because if they didn't do it for everyone then my colleagues would have a case against them then wouldn't they?

RUDE EXPLETIVES!

Final question if you have the time:

If I resign then apply to an external vacancy with my current company, would there be any potential repercussions for the line manager taking me on? I am, to put it bluntly, very good at what I do, and he could justify taking me on. I know it would reset my long service 'clock' with them unfortunately.

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Just worry about you. If you have transferred and apply for a position in another company - even your old company - you lose your length of service = cheap to let go in a redundancy, virtually no employment protection.

 

Your manager can look after himself.

Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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