TUPE help please

[Tinkerb]

Thanks happyhelper. I've looked into ETO's but am struggling to come up with how they could be an argument: the business has a very healthy turnover; the jobs will still exist in exactly the same format, and there's no existing business of the new operators which would have an organisational effect. We haven't elected to speak with ACAS yet, my previous experience with them wasn't good, indeed when a previous issue of TUPE came up (I represented a friend at ET on a TUPE matter), they knew less than I did - and 2 years on, my friend still hasn't received her award, as she's now following ACAS advice.

 

Sorry if that sounds negative, but ACAS have previously told me they don't advise on who's right, just act as a conciliation service. But I may ring them tomorrow, just in case.

[happyhelper]

Thanks happyhelper. I've looked into ETO's but am struggling to come up with how they could be an argument: the business has a very healthy turnover; the jobs will still exist in exactly the same format, and there's no existing business of the new operators which would have an organisational effect. We haven't elected to speak with ACAS yet, my previous experience with them wasn't good, indeed when a previous issue of TUPE came up (I represented a friend at ET on a TUPE matter), they knew less than I did - and 2 years on, my friend still hasn't received her award, as she's now following ACAS advice.

 

Sorry if that sounds negative, but ACAS have previously told me they don't advise on who's right, just act as a conciliation service. But I may ring them tomorrow, just in case.

 

Okey dokey. Re ACAS ; no , well yes !, you do sound a tad negative re ACAS. They did have issues a while back, but should have improved in recent times. Try them, if you're not happy, kindly let me know and I'll have a word with a senior conciliator that I know.

 

Re ETO it's too specialised for me, but I sense it's a rather blunt instrument which employers may seek to use to their advantage. After all economic, technical and organisation (i.e. ETO) reasons for getting rid seems rather wide ranging particularly where an employer complies with ACAS guide, the law and their own internal procedures. Becky, Emmzzi and Sidewinder may be more willing to guide you. Without a detailed statement of your circumstances I would be somewhat reluctant to offer detailed guidance. Anyhow, you seem more than well enough equipped to act as tip top lay rep.

[Sidewinder]

The problem with ACAS is that their Helpline advisers used to be first class - and were often experienced mediators - however with the increased use of the service the call centre has relied largely on more inexperienced staff reading a script and asking questions which when input into a software system, arrive at an answer. The software is good, and 'learns' from responses in order to update the database, but it will always be a substitute for experience and qualified advice. I am still a supporter of ACAS, but urge caution for the above reasons. A call will always be worthwhile if only to support of challenge advice received elsewhere.

 

ETO cannot be used (in this situation) by an employer before a transfer occurs. The role still exists as things stand. The function of the business will remain exactly as it is but the name over the door will change. The customers, premises and fixtures and fittings will all be the same. The only reason that your OH is not expected to transfer is because the new owner wants that role for himself. Whilst ETO can be a factor post-transfer, the incoming owner would have to use proper redundancy procedures to dismiss fairly and will be liable for any redundancy payment.

 

Somebody will be in very hot water here unless the transferring employer provides something suitable for your OH and which he is prepared to agree to. The current employer should have fully consulted with all affected staff before the transfer and should have provided details of all staff to be transferred at least 14 days before the transfer. If your OH was to dig his heels in and start asserting his rights, he could be looking at a redundancy payment (or Unfair Dismissal case) plus 13 weeks wages as compensation for a failure to consult. That would go for the other staff as well.

 

I'm with Emmzzi - he needs to say to the current employer "Well surely this is covered by TUPE and I haven't even been consulted. Why can't I just transfer over to the new owner's employment and carry on as I am?"

[Tinkerb]

Thanks everyone. Having spoken with the other main members of staff, everyone agrees that a collective voice is better than a single one. Everyone is going to be at the meeting at the weekend, and they have been given (by me) the basics of TUPE info.

 

I did phone ACAS this afternoon, but didn't find out any more than I already knew. They're a good organisation, but unfortunately the staff are answering questions by searching through the info readily available on their website, nothing more. When questioned whether a consultation 4-5 days before the transfer completes was reasonable, they couldn't answer. As the rightly said, they are there to inform of the regulations, not offer advice (or something like that). Interestingly, another of the employees also spoke to ACAS today, and received contradictory information to what I had received.

 

I get the impression that ACAS concentrate on conciliation services these days. Or maybe I just expect too much.

[happyhelper]

BTW ; a thicko question, but as I don't really do text speak can I presume that an OH .... is your Other Half !?

 

I also have a minor clarification / technical query to ask Sidewinder. In their last post the member says above ..." If your OH was to dig his heels in and start asserting his rights, he could be looking at a redundancy payment plus 13 weeks wages as compensation for a failure to consult......(added for emphasis) ..presumably re TUPE". I understand this is a protective award. As far as I am aware such a compensatory award (if awarded) is up to 90 days (circa 13 weeks). In a case I dealt with the award granted was only 4 weeks due to mitigating circumstances Further, I thought a protective award for each employee could only apply where an employer fails to consult over TUPE (or redundancy) , provided there are 20 or more employees in any one establishment who may be made redundant. Are there 20 or more employees to be affected and/or TUPE transferred at the establishment where your OH works !?

 

If it all goes pear shaped and Sidewinder etc feel your OH may ultimately have a good case I'd suggest that you find a decent employment barrister via direct access and ask them to determine your prospects of success. In my experience a decent barrister may do so for less than £300 assuming you adequately brief them. I wouldn't touch most employment solicitors with a bargepole, but that's purely based on my bad and repeated experiences.

Edited February 20, 2014 by honeybee13

[Emmzzi]

This is a forum for helping people, not pursuing your personal agenda for ACAS. I am sure our posters are capable of raising complaints personally if they wish. Also, again, it is an anonymous forum and we have no idea of your credentials. I am sure ACAS could speak directly to the site team about approaching members if they genuinely wanted feedback.

 

Can we keep this on the topic of helping the poster?

 

We also already know only 3 staff are involved.

[Emmzzi]

3 staff are involved in the TUPE transfer of the business, husband and the 2 young lads.

 

I'll report this thread to the site team so they can decide, but I really feel it would be appropriate to start your own thread on ACAS as opposed to derailing this one, at the very least.

[Tinkerb]

Good morning everyone. Firstly, I must apologise for my 'text' speak, I don't use it as a rule, in fact loath the use of it, but when I'm using my phone to access the web, typing can be laborious, so I'm afraid I do revert to text speak sometimes. OH, does indeed mean other half. (I'm on my pc now, so I can refrain from text speak, and I can also see more clearly responses, which I haven't previously acknowledged.

 

If I'm to be honest and fair, I think the main reason I don't find ACAS particularly helpful, is because I have a certain amount of knowledge myself, but I can see that to any lay man, their help would be invaluable. Because of my previous knowledge, I know I'd be better speaking to a solicitor, but alas, I simply can't afford one. But I am aware that I do not 'know' any of you, nor do I know your expertise, but your replies are helping re-affirm what I believe, and pointing me in the directions to where I can get more information.

 

Just to clarify: there are 8 staff that will be affected, 2 full time adults, 2 part time adults, and 4 young, part-timers.

 

At the proposed meeting at the weekend, it is our intention to gain the information we need about the incoming owners, and will also directly ask what information they have been provided with about existing staff, and when we can expect to meet and consult with them. TUPE will also be directly talked about, as Emmzzi (?) said, now is the time to start being more assertive, there is no longer anything to lose. We are reasonably sure, that the owner doesn't actually want to sell it, but is being pressured by other senior directors of the main company to get rid, as it's outside of their normal business practice. Perhaps if we can provide a viable reason why it shouldn't be sold (i.e. 8 ET cases against them), there may be a change of heart. There's also the possibility of making sure the incoming owners have got the correct legal information on TUPE, BEFORE they sign any contract.

[Tinkerb]

Just a second thought: Although there are only 8 employees that will be affected by this transfer, the company itself has over 1,000 employees in their normal business, so, we're not talking about a small company that doesn't know any better. Indeed, they have grown to their current size as a result of takeovers, the last one being last year, so they really should know TUPE legislation.

[happyhelper]

3 staff are involved in the TUPE transfer of the business, husband and the 2 young lads.

 

I'll report this thread to the site team so they can decide, but I really feel it would be appropriate to start your own thread on ACAS as opposed to derailing this one, at the very least.

 

I will be reporting your two posts to the Site Team also. You are entitled to your opinion Emm, but so are others ; even if they are new CAGGERS. I would PM you but my PM service does not seem to work. If Emm, or anybody else for that matter, thinks that I have broken a site rule, pl PM me and kindly tell me what I may have done wrong x

[badback2]

I will be reporting your two posts to the Site Team also. You are entitled to your opinion Emm, but so are others ; even if they are new CAGGERS. I would PM you but my PM service does not seem to work. If Emm, or anybody else for that matter, thinks that I have broken a site rule, pl PM me and kindly tell me what I may have done wrong x

 

Having read threads I have to empathise with Happy Hlelper.

 

OP ; intriguing post and so glad to hear that Sidewinder and Happy Helper have so expertly guided you.

 

Keep us updated.

[honeybee13]

Having read threads I have to empathise with Happy Hlelper.

 

OP ; intriguing post and so glad to hear that Sidewinder and Happy Helper have so expertly guided you.

 

Keep us updated.

 

We'd expect you to agree, as you're HH's partner.

 

HB

[Emmzzi]

Just a second thought: Although there are only 8 employees that will be affected by this transfer, the company itself has over 1,000 employees in their normal business, so, we're not talking about a small company that doesn't know any better. Indeed, they have grown to their current size as a result of takeovers, the last one being last year, so they really should know TUPE legislation.

 

1000 employed or over franchises?

[Tinkerb]

1000 employed or over franchises?

 

All employed. They don't do franchises. They now have 235 (or thereabouts) retail outlets. I could say what sector, but that would give away who they were.

[Emmzzi]

Ok. Not sure that makes a difference. Alternative employment would apply if the original company were making them redundant but it is the incoming one that does that.

[Tinkerb]

I've a sneaking suspicion that the incoming operator hasn't been informed of the staffing situation. I shall be making appropriate enquiries at the meeting. with what I've read, and please correct me if I'm wrong, but I don't think they can make redundancies as a result of the transfer. As the business will continue in exactly the same format, the jobs of managing, serving, cooking, etc, all still exist.

[Emmzzi]

They could elect to streamline but should be able to explain why and how

[happyhelper]

I've a sneaking suspicion that the incoming operator hasn't been informed of the staffing situation. I shall be making appropriate enquiries at the meeting. with what I've read, and please correct me if I'm wrong, but I don't think they can make redundancies as a result of the transfer. As the business will continue in exactly the same format, the jobs of managing, serving, cooking, etc, all still exist.

 

Hi again. Clearly Sidewinder appears to be the most knowledgeable CAGGER re TUPE. I did, however, point out the 20 person threshold, and that does in fact apply in the scenario you portray. You keep asking about redundancy. I will bow to Sidewinder's greater knowledge, but as far as I am aware, it is entirely feasible that the new owner could find a lawful reason to make your OH (or is in fact you !?) redundant. The rules are complicated in this regard, and are dependent upon the specific facts and circumstances of your case, of which we do not have sufficient knowledge.

 

Sorry to sound like a scratched record. but in the absence of a "professional" with back of professional indemnity insurance then I would refer you to the link below. In case any members lay in to me for the umpteenth time, I am not advocating the link, but at least it is accurate and up to date :

 

http://www.acas.org.uk/index.aspx?articleid=1655

[Tinkerb]

I shall look into it further.

 

It definitely is my husband that's facing this, but I may talk in the first person, as opposed to the third, (if that's the right expression) purely as it makes it easier, but also as I'm acting as my husband's adviser

[Emmzzi]

First step is to get them to acknowledge tupe applies; redundancy questions come later. Good luck!

[Tinkerb]

I shall Emmzzi. I shall be reporting back after the meeting, due Sunday.

 

As it currently stands, and like many situations, it's open to interpretation and opinion, I think any redundancy would be directly because of the transfer.

[happyhelper]

I shall look into it further.

 

It definitely is my husband that's facing this, but I may talk in the first person, as opposed to the third, (if that's the right expression) purely as it makes it easier, but also as I'm acting as my husband's adviser

 

Okey dokey and sorry for doubting you. And we may have achieved nirvana with this post. I agree with Emm re first priority being transferor and transferee's knowledge of TUPE.

 

Tactically, I sometimes advocate letting employers screw things up and then take them to the Tribunal. Kinda cruel, but if you educate an employer, they rarely thank you, but they may still make you redundant and/or then fairly, as distinct to unfairly, dismiss you.

[Tinkerb]

I agree with the 'give them enough rope' ;-) Until now that has been our stance. But winning an ET is rarely satisfactory in terms of income, and we're also mindful of age being against him in finding alternative work (over 50).

 

I'll be back after Sunday

[Sidewinder]

I thought a protective award for each employee could only apply where an employer fails to consult over TUPE (or redundancy) , provided there are 20 or more employees in any one establishment who may be made redundant[/Quote]

 

No, you are confusing redundancy with TUPE the two are distinct and are covered by different legislation. We aren't (yet) at the stage where redundancy is a consideration. TUPE requires that the transferor consults with elected representatives of the affected employees, irrespective of the number of staff affected, and a failure to consult, where there are no special circumstances as to why that did not happen, an award may be made of an amount not exceeding 13 weeks wages.

[Sidewinder]

I've a sneaking suspicion that the incoming operator hasn't been informed of the staffing situation. I shall be making appropriate enquiries at the meeting. with what I've read, and please correct me if I'm wrong, but I don't think they can make redundancies as a result of the transfer. As the business will continue in exactly the same format, the jobs of managing, serving, cooking, etc, all still exist.

 

I believe this is true, and if the incoming owner was to be lumbered with staff that he hadn't accounted for, he could also make a claim against the transferring owner for a failure to provide details of staff that would be transferring!

 

They indeed cannot make redundancies where the redundancy is due to the transfer itself - that would be automatically unfair. They can make a case that redundancy is necessary due to ETO reasons, but with what we know so far I think this could be difficult for them to demonstrate - the highest hurdle to overcome being the apparent lack of due diligence regarding staff responsibility. Very hard to suggest that the new owner was entitled to make changes when no consultation about any proposed changes has actually taken place. This seems to be typical of so many situations where somebody takes over a business and just thinks they can run it themselves without any consideration for legal obligations when it comes to staff.