TUPE help please

[Sidewinder]

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

 

Useful to remember. One step at a time. Let the employer suggest redundancy and make sure it is recorded in the comprehensive notes that you MUST take in the meeting.

[Tinkerb]

Thanks Sidewinder. I shall make copious notes, and report back. Sadly in the 'hospitality' trade, and I speak from experience, there's a certain arrogance about employees' rights, probably because for so many years everyone was paid cash in hand, and some still are.

 

One thing's for sure, I'm going to miss the discussions I'm having here when it's all over. :-D

[Emmzzi]

Thanks Sidewinder. I shall make copious notes, and report back. Sadly in the 'hospitality' trade, and I speak from experience, there's a certain arrogance about employees' rights, probably because for so many years everyone was paid cash in hand, and some still are.

 

One thing's for sure, I'm going to miss the discussions I'm having here when it's all over. :-D

 

You'll be in a great position to come back and share your experience, good or bad. TUPE is a common question round these parts.

[Sidewinder]

Completely agree with Emmzzi. You will be perfectly qualified to pass on your knowledge to others - TUPE rights are continually being strengthened and clarified by case law and even if your case wasn't (and I hope this is the case) to be decided through a Tribunal, it will still be very relevant to others down the line.

[Tinkerb]

Good evening lovely people.

Well, what a day, but unfortunately, I have very little to report. HR manager, eventually turned up, late, and promptly didn't agree to my being there, or representing the staff, as I'm not a union rep, nor an affected employee, I was even asked to leave the premises - which I refused to do.

 

They consulted with each staff member individually (those that were there, not everyone could make it at short notice), and from what I understand, merely confirmed that the transfer was going ahead on Friday, today was the 'initial consultation to answer any questions', that no staff were transferring, some were told that alternative work would be found in one of the various shops, and if they didn't want that, they could take 'voluntary redundancy'

 

It appears that TUPE is not being accepted, although when pushed as to whether the Employee liability information had been pass to the new operators, the response was "I believe our estates department have done so". We've requested confirmation of who it was passed to and when, and requested contact details of the new operators.

 

Husband is due to contact the owner tomorrow, who will, no doubt, by then have been informed of my input, so, yet again, I guess at the moment, all we can do is wait!

 

Seems to me the HR department are making a right mess of this!

[Emmzzi]

"Making a mess" is subjective - playing the odds the staff are ignorant and they'll get away with it, I'd say...from the employer's perspective they are doing beautifully!

[Tinkerb]

Hmmm, true. Funny how they didn't have anything in writing for the staff either.

[Tinkerb]

OOps, sorry, I meant to ask a question, but forgot. Some of the junior members of staff are due to work on the evening of the transfer. They have asked me what they should do. I'm inclined to advise them to turn up for work, as normal, and present themselves to the new operator. Is this the best course of action for them?

[Emmzzi]

It's what I would do, but they need to decide for themselves.. you seem to have become mum. Watch you don't open yourself up to liability and send them down the CAB or get them to check parents house insurance for legal cover.

[Tinkerb]

It's ok Emmzzi, I've advised them of the legislation, but pointed out, I'm not an expert and they should do their own research on TUPE and talk to parents/acas, etc, but they have to make their own minds up as to what they want to do.

 

Am I right in thinking that a decent HR department should have provided everyone with information that is relevant to the situation?

[Emmzzi]

HR are never ever ever there to look after the staff. The question is "what does legislation say should be done." The simplest guide I know of is here

 

https://www.gov.uk/transfers-takeovers/consulting-and-informing

[Tinkerb]

They're not looking after the company either ;-)

 

The link is one of the many I've been consulting.

[Sidewinder]

I think that you have already done a lot of homework on this, so no doubt some of the following you will already know.

 

There were some amendments to TUPE which came into force on 31st January. The details are contained in the linked ACAS factsheet here http://www.acas.org.uk/media/pdf/l/1/9908-2901767-TSO-ACAS-TUPE_is_changing-ACCESSIBLE.pdf

 

None of the changes so far as I can see damage your case, and one or two actually seem to clarify the position. Specifically:-

 

[B]Situation 1: Business transfer[/b]

 

The TUPE Regulations apply if a business or part of a business is bought or sold. But they won’t apply if just shares, assets or equipment are transferring to a different owner. Also, the business must continue to trade in the same way after the transfer as it did before the transfer. These types of transfers are called business transfers.

 

There is no change to TUPE here

 

In your situation, the business as a whole is transferring. It will continue to trade as at present, and is not being broken up or transferred piecemeal.

 

Economic, technical or organisational (ETO) reasons

 

An ETO reason cannot be used just to reduce labour costs or harmonise terms and conditions with existing employees.

 

Change 6: An employee will be automatically unfairly dismissed if the sole or principal reason for the dismissal is the transfer

 

Under TUPE it will continue to be automatically unfair to dismiss an employee because of the transfer itself. Previously changes to terms and conditions for a reason ‘connected to the transfer’ were also automatically unfair but this has now been removed. However dismissals may be fair if:

 

●● The reason for the dismissal is an “Economic, Technical or Organisational reason entailing changes in the workplace”.

 

●● The dismissal can be shown to be for genuine redundancy reasons and the employer followed a fair dismissal procedure.

 

On this point I cannot see that an ETO reason exists. The business will be continuing in its current form, location etc

 

The outgoing employer should have communicated all of the ELI to the new owner so that there is an understanding of rights and responsibilities. This should happen no later than two weeks before the transfer. All affected staff should be consulted about the transfer and its implications in sufficient time for a proper consultation to take place.

 

Did the current employer not disclose any reason why they feel that TUPE does not apply? Did anybody ask that specific question?

[Tinkerb]

Hi Sidewinder. I've looked through the changes to legislation too, and one of the changes of arranging the election of a representative for 'micro' businesses, doesn't come into effect till July, so that's another breach, as they haven't done anything.

 

I asked the question of why TUPE didn't apply, the HR manager "didn't know". That was just before she refused to talk with me and I was asked to leave the premises

 

We're 5 days before transfer date, so certainly a bit late for 'initial consultation'. They seem insistent on this 'alternative employment' which given the current place of employ is in a village, and several of the staff live in the village, whereas all their shops are in large towns, presents a problem with transport, particularly for the youngsters. Also, as no-one has a written statement of particulars, there is no 'location' clause. I think the new regs have removed the change of location as a reason to object, but I'll look into that. I would have thought that it would be best practice to put offers of alternative employment in writing, otherwise there's nothing to protect the staff. One adult member of staff has been offered a redundancy package, and as he has admitted that going through an ET isn't something he wants to do, he's mindful to accept; he's been given till Friday to make up his mind.

Edited February 24, 2014 by Tinkerb

[Sidewinder]

I asked the question of why TUPE didn't apply, the HR manager "didn't know". That was just before she refused to talk with me and I was asked to leave the premises[/Quote]

 

I wonder whether that was why you were asked to leave - troublemaker!

 

We're 5 days before transfer date, so certainly a bit late for 'initial consultation'. They seem insistent on this 'alternative employment' which given the current place of employ is in a village, and several of the staff live in the village, whereas all their shops are in large towns, presents a problem with transport, particularly for the youngsters[/Quote]

 

IF - and that would be of course down to the individual - alternative employment were to be considered, it must be deemed suitable. Adding to cost of travel or working hours, availability of public transport etc, would all be factors that might make it 'unsuitable'. Suitability is a very subjective thing.

 

I would have thought that it would be best practice to put offers of alternative employment in writing, otherwise there's nothing to protect the staff[/Quote]

 

Indeed it should be a 'must', but in one sense protecting the staff could also be damning if it came to litigation - written evidence of not applying the law.

 

One adult member of staff has been offered a redundancy package, and as he has admitted that going through an ET, he's mindful to accept; he's been given till Friday to make up his mind[/Quote]

 

The mischief-maker in me would make me want to take the redundancy package, knowing they will probably not include a compromise agreement waiving his employment rights, and then still complain to an ET about Unfair Dismissal

 

It is all very well chucking this about on a forum - I am well aware that this is a difficult thing to go through, and of course there is a need to weigh up all of the circumstances. My problem is that employment rights are hard-fought and TUPE in particular serves to provide protection in cases such as this, but of course you must also have one eye on the future. Standing up for one's rights is all well and good, but serves little purpose if he were to be made redundant a short while later - legitimately - and have no alternative employment to fall back on. For that reason it may be unwise to completely dismiss any notion of taking another job in the existing business, but it must be suitable, maintain his status and terms, and provide some degree of security. On those points, I feel you have a good bargaining position as I can't help but believe that the new owner has no idea whatsoever about how much this could potentially cost, and as I have already said, it could even derail the transfer - or at least cause the deal to be renegotiated to account for the extra costs involved.

[Tinkerb]

Re the compromise agreement, I've pre-warned the relevant person to be wary of compromise agreements. I've actually gone through that scenario myself, so know how they work (and when they're not valid).

 

It has been said on a couple of occasions, both to HR and the owner, that any alternative employment must be suitable, based of husbands experience, acceptable, and commensurate with what he would expect to earn in his current position. Discussions on that part are due to commence (again) tomorrow. That will also be when the owner finds out what happened today, so we're expecting some brown stuff to be flying about.

 

If we are provided with contact details of the new operators, should contact be made with them? If the mountain won't come to Mohamed, etc?

 

We have been given the names (unofficially), and found them on Facebook: it's amazing what you can find out on there too! :-D

[happyhelper]

Hi All,

 

Been off site for a while, through choice.

 

Just catching up on this interesting thread.

 

All I can offer is the following observations based on my own relevant experiences :

 

1. Side, Emm and I appear to owe you an apology. We should have forewarned you that you would in all likelihood be told to leave any "consultation" meeting and the "employer" was within their rights to do so. That said, was a letter sent to all affected staff inviting them to said meeting and giving them at least 48 hrs forewarning ? if so, the invite letter as per good practice should have made it clear who could or could not attend the meeting.

2. Glad that you have been finally referred to ACAS website etc.

3. A compromise agreement will in all likelihood require that the employee waive any rights to an unfair dismissal claim etc. If you ask for UD reference etc to be excluded then I doubt the terms will be acceptable to the "employer". Scratched record yes, but why not involve ACAS ? but as far as I recollect there is common acceptance that ACAS do most certainly employ excellent conciliators. You may wish , subject to employer's consent, consider ACAS's excellent pre-claim conciliation service (PCC) and/or involve ACAS in COT3 negotiations. It's free, simple and often effective.

4. Better still, the affected staff may wish to club together and find an employment barrister via direct access. In my experience if one person appoints, but say 8 share costs, then they may only be charged £440 in total , inc VAT, i.e. circa £50 each. Moreover, if employer has already offered a compromise agreement to one staff member then ordinarily the employer is expected to offer say £400 plus VAT for employee to take paid legal advice. That may be your answer, you c/o affected staff may then be able to kill two birds with one stone and get most, if not all, of their queries answered by a transparent expert at no cost. On that basis even I would see little need to involve an ACAS conciliator. Furthermore, the affected employees will then have back up of professional indemnity insurance (PII) and credible advice.

 

I may leave myself open to criticism for one again wittering on about non CAG alternatives, But, I sense the OP is taking on far too much here. I'd recommend using ACAS and/or a paid legal professional as principal point of contact from hereon in. Re latter IMHO barristers are generally far better qualified and more cost effective than solicitors. Then as a final reality check you can liaise with the anonymous helpful CAG volunteers.

 

x HH

Edited February 24, 2014 by stu007
Removing Side and Emm and OP may be critical of ACAS helpline

[Tinkerb]

Hi happyhelper. At the moment, the youngsters are each individually putting in grievances, so at least it's on record. They are all college students, and the reality is, if their employer pays them off, they will take the money. Having said that, there is certainly one that is taking further advice, which is good. All I've done is give them the basic information, but now it's up to them.

 

One adult employee won't make a fuss as they are personal friends with owner of business.

 

There is a further meeting tomorrow, so we'll see what that brings.

 

I knew I didn't have a right to represent: funny how the HR manager knew that, but didn't know anything else :-D

 

And finally, there is NOTHING in writing; no notification of meetings, no promises if alternative employment, etc. and still no information on those taking over the business.

 

In reality, I think tomorrow will be the last attempt to find a successful conclusion, even outside of TUPE. It appears the owner is no longer prepared to talk directly to OH, which is sad. We had no desire to upset a previously good professional relationship, but we're not still in the 19th century where employers told you what to do, and you did it, regardless.

 

Fingers crossed for tomorrow.

[Tinkerb]

Update:

Business transfer is not going through: Apparently they've 'realised' they weren't doing things right, so they're not selling. We're awaiting written confirmation.

 

Amazing what can be achieved when you stand up and speak!

[Sidewinder]

Easy to see why. I suspect that the current owner will have taken advice and realised that there was a potentially huge liability for a claim that would be hard to defend. Likewise the new owner will have discovered that his business plan had not accounted for the cost of ongoing wages or the signifcant cost of making redundancies and the possibility of facing multiple UD claims.

 

A note of caution though. There was a reason why the business was being sold, so there remains the possibility that the owner may close it and make staff redundant, leaving the way open for it to be acquired later on without the staff liability.

 

For now though, well done!

[Tinkerb]

We're aware of the reasons it was on the market, I won't go into it here, but they weren't financial. Obviously we're still wary, but are now going to ensure that things are put in writing. Closing the business then transferring it won't stop TUPE coming into effect (depending on how long it's closed for). There are a couple of previous cases where that happened, and TUPE was deemed to still exist, so setting a precedent. I've got details of the cases somewhere, just in case.

[honeybee13]

Well done, tinkerb and the guys.

 

HB

[Tinkerb]

Well, the 'peace' only lasted for 5 months.