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Accrued Hoilday problem


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Hi everyone

 

I wonder if someone can advise me?

 

I work for a recycling company. The companies workforce is supplied by an employment agency. I am one of the workforce.

 

The company decided to cease working with this agency and brought in a different on. I shall call the first agency.. Agency A and the newer second Agency B.

 

None of the workforce knew that the company was bringing in a new agency. The first we heard of it was when we were brought into the office one at a time. This new agency told us that come the end of the month (March) they would be supplying the company with workers. We would be working for this new agency from 1st April and everything would be the same . They also advised us to take all our holidays before they took over because this new agency based their holiday year from April to March. So in effect we would start with a clean slate.

 

Agency A called into the company on the last day of their contract and spoke to us. They said that no matter how often they called Agency B they could not get together to discuss TUPE. I was advised to sign the TUPE agreement to protect my rights, which I did.

 

As it was already the middle of March not everyone could take their holidays in so short a time so I emailed/telephoned Agency A and asked them to pay me for the outstanding holidays I would not be able to take.

 

Anyway, I am now working for Agency B and all seems well except that when I mentioned my accrued holidays they said I should contact Agency A and get them to pay up.

 

I have now received a letter from Agency A stating that under TUPE any accrued holidays transfers to the new employer.

 

So I am at a loss what to do. Agency A says TUPE applies Agency B says not.

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Employee related liabilities do pass over from the transferor to the transferee upon a TUPE transfer. However, this does not apply to workers or subcontractors, or any other third parties, as the TUPE Regulations are designed to protect employees - not third parties or any other type of worker, and you are not employed by the transferor, but you are engaged by the agency. Therefore, as neither you nor your agency worker colleagues are employees in the legal sense, as you are workers employed directly by an agency, TUPE cannot apply to you. There cannot therefore have been a TUPE transfer in this situation, and I believe the agency is incorrect in its assumption that TUPE applies.

 

You also cannot be working for Agency B unless you agree to do so, as your "employment" does not automatically transfer under TUPE. You would effectively be commencing a new engagement with Agency B, under whatever terms and conditions they offered you. This is entirely separate from the engagement with Agency A (save for accruing rights under the Agency Worker Regs).

 

The only way I can see that they are muddling TUPE here is that, rather than assuming you are "employed" by the recycling company, they are assuming that you are "employed" by Agency A and that your "employment" transfers to Agency B (although logically, I cannot see any reason why Agency B would agree to continue engaging the same workers when undoubtedly they have their own list to choose from). I don't think this is correct either as it is a tripartite agreement which, IMO, is incapable of amounting to an employment relationship (technically, agency workers can be employed by no-one!).

 

Anyway, I cannot see any circumstance whereby Agency A would not be liable for the accrued holiday pay. It's important that you do not lose this by missing the three month time limit for claiming in the ET, however.

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Thanks for your replies

 

@Becky. I have 'googled' for more answers based on your reply and I believe you are absolutely right. I should have mentioned in my opening that the company I work for have a 'core' workforce of permanent employees, and the rest including myself are agency based.

So from your reply and from what I have read, TUPE does not apply in this case. Therefore Agency A owe me for the accrued holidays. Unfortunately Agency A ended their letter to me stating that would not discuss the matter any further.

 

I guess that I will have to go down the legal route although I have no idea where to start other than Citizens Advice. Or perhaps the local paper?

 

Once again, many thanks for your reply, it helped me a lot.

Edited by jonbr
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What do your employment contracts say about the nature of your engagement/employment and holiday? Also, what is this 'TUPE agreement' you signed? The answer may well be in there. Please read these documents carefully and let us know what they say.

 

The three months time limit applies to employment tribunal claims but not to county court small claims track. SCT can be used for things like claiming outstanding holiday pay or wages. These days SCT is usually a bit cheaper than going to an employment tribunal ... so a good option if it turns out you have a valid claim against Agency A.

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