TUPE help please

[Sidewinder]

He should transfer retaining his current status and terms and conditions. Your problem will be proving the precise nature of his status in the absence of a contract. If he can prove that he is a full time manager then that is what he would transfer as, so wage slips, text messages, emails etc?

 

In either event the new 'owner' does not have a say. As a part of the due diligence in advance of acquiring the business TUPE should have been a consideration and your OH should have been consulted - he would be able to make a claim to an ET for any failure to consult, and could be awarded 13 weeks pay for this. Iif the new owners were to simply dismiss him or make him redundant after the transfer he would also stand a very good chance of making an Unfair Dismissal claim.

 

Although your OH could agree to be redeployed by the 'old' employer rather than transfer, this would be contrary to TUPE, as what should happen is for the employee to transfer and then for the new owner to agree a suitable alternative role if their position did not exist in the new organisation. If the role genuinely did not exist then your OH could, subject to a normal fair process be made redundant by the new employer, but to simply not wanting to take him on as they wish to run the business themselves would not be considered a fair reason for dismissal.

[Sidewinder]

He needs to be very strong and absolutely forthright. Tell the (old) employer that legally his existing position is covered by TUPE and that strictly speaking he should insist on being transferred across with his length of service, current role and pay protected. The mere fact that he has not been consulted, nor it seems is being transferred across is sufficient for a viable ET claim and the employer will be very keen to avoid that. In the circumstances, whilst he appreciates that the employer is keen to look after him, he is sure that they understand the need to keep everything in writing, with written assurances that his existing T&Cs will be protected and any role offered should be suitable.

[Sidewinder]

The alternative for the employer is that the sale could fall through of course in addition to having to defend a claim!

[Sidewinder]

All employees are protected by TUPE, so the part-time colleagues would almost certainly be entitled to consultation and to be transferred.

 

There is no timeframe prescribed by TUPE, only that the incoming and outgoing employers have a duty to consult, individually where 10 or fewer employees may be affected, and collectively where the number exceeds 10.

 

ACAS have some information which may be useful here http://www.acas.org.uk/index.aspx?articleid=1655

[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?"

[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.

[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.

[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.

[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?

[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.

[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!