Dismissal / TUPE / Takeover

[firstclassx]

Perhaps Emmzzi can shed some light on a question I've had for a while on TUPE. In the rail industry, tends of thousands of employees are TUPEd over every few years as franchises are lost and won by the different companies.

 

A lot of staff leave and join other Train Operating Companies (TOCs), sometimes to seek better working conditions, sometimes because they are effectively forced out, or sometimes just blatantly dismissed.

 

Occasionally the "area/station boundaries" of each TOC are re-drawn by the government. This may get a bit complicated so I'll paint a fictitious example:

 

January 2013 - A ticket office employee is employed by Green Trains at Birmingham Station

May 2014 - The ticket office employee above is dismissed for gross misconduct.

June 2014 - That ticket office employee finds another job quickly and is now employed further down the road with Red Rail at Wolverhampton Station and is an excellent employee.

March 2015 - The government decides to redraw the railway franchise boundaries, and Green Trains will now run Wolverhampton station too, with all staff at Wolverhampton TUPE'd over from Red Rail to Green Trains.

 

This means that the ticket office employee who was sacked from Green Trains would now be working for Green Trains again, despite previously being dismissed.

 

Is Green Trains legally obliged to retain the employee because of TUPE legislation? Does their HR File from their original employment with Green Trains become active again or should they be given a clean slate and treated as new?

 

Purely theoretical post, but I imagine this happens occasionally.

[Emmzzi]

I'm really sorry - I have limited time and I tend to save it for people with real problems than theoretical ones I can say however I've never seen this actual situation - this industry tends to be quite a close community and people talk to each other so the second hire *and* then a TUPE - not so likely.

[Sidewinder]

Interesting question (even though I am not Emmzzi) but with a reasonably straightforward answer.

 

In the circumstances you have outlined, Green Trains could dismiss for Some Other Substantial Reason. Whilst an employee being transferred would be protected from dismissal where the reason was the transfer itself, in this example the employer could dismiss on the basis of SOSR citing the lack of fundamental the fundamental trust and confidence required in an employment contract for reasons totally unconnected with the transfer.