Tupe law ***Cash Settlement Agreed***

[billathome65]

Hi some urgent information needed on Tupe Law.

 

A friend of mine has been working via Tupe regulations for a number of years as she works for employment training / provider services the nature of which is that the services bid and the best bid wins resulting in staff then being Tupe'd over as I'm sure most of you guys and girls will know how it works.

 

Anyway my friends company recently lost the new contract and untill today was being told they where all being tupe over to the new service so obviously along with others did not see the need to look for new employment.

 

However today she has been told that she along with a number of other staff are surplus to requirements and as such is being made redundant.

 

As I see it it is a transfere of business. The new company have cherry picked current staff for TUPE showing liability and as such the 2006 regulations apply, also by cherry picking they have acted discriminatory towards staff.

 

Her current employers have told them however that when the contract finishes on the 5th March 2015 to go to the new providers on the 6th March 2015 and if they are then turned away they can go for unfair dismissal under the Tupe Law. Is this correct and how does that work????

 

Cheers Bill

[billathome65]

Slight update

 

I have been told that all the employment advisers have been TUPE'd over and it is the 3 admin staff who have been told they are not needed.

 

I have been told that the new provider is stating that as they are NOT employment advisers their role is not required as they are not bound by the TUPE regulations however as they are front line staff who do all the support back up for the advisers they are doing much of the same work and are actually on the same contracts with the same protection of TUPE. The new provider have admin staff but under a different title and are trying to get round their responsibilities by quoting different roles.

 

My friends present employer is challenging the new company over their actions and are advising accordingly any other info would be good to have.

 

I was also told that although my friend has not transferred employer officially the new provider has sent letters to the admin stating they are to be made redundant and the consultation process will begin next week? how can the new employer start the consultation when my friend is not officially their employee yet and surely if the role ends on the 5th of March the consultation period falls short of the required time frame?

 

Cheers Bill

[Emmzzi]

they can start the consultation process now, yes. Are they dealing with a union or employee representatives? They should be. And the reps should be querying who is in the redundancy pool, old company and new.

[Emmzzi]

ps consultation period varies with size of affected population and company.

[billathome65]

Cheers wasn't sure how the consultation worked for tupe.

 

The union and HR are talking to the new service provider as they have raised objections around this matter.

 

The new company are saying that as they are admin and don't deal with clients directly on the employment side that they are not subject to the tupe.

 

However the old company are saying that the role of the admin is to also do all the admin work related to work start ups the employment service etc and so they do do the role of the advisers.

 

They have also shunned the idea that they are not subject to tupe as all but one of the admin workers has been tupe'd over three times.

 

They are also dismissing staff which is in direct conflict with the purpose of tupe rules.

 

As they are also only getting rid of the admin they feel they are discriminating having not taken into account that all the admin staff have also been employment support workers previously to taking on the admin roles.

 

The old company are also saying as I said that the 2006 regs on tupe law are being breached as

 

Any legal info regarding tupe would be welcomed.

 

Cheers Bill

[becky2585]

The basic position is that a redundancy pre-transfer, because of the transfer, is likely to be automatically unfair. If there is a genuine redundancy situation which is likely to occur post transfer, then those employees should be consulted before the transfer over the new company's proposed "measures" or making redundancies. Simply making the transferring employees redundant (pre or post transfer) isn't acceptable - the usual principles of pooling, consulting, scoring etc should still apply post transfer.

 

In terms of who transfers, the basic position is that anyone who spends the majority of their time on the transferring work should move to the new company. Anyone who spends less time than that would not transfer and could be made redundancy fairly if their work no longer exists.

[billathome65]

Cheers. But surely the 2006 regulations where introduced to stop this happening? If not then why have a regulation in the first place which can be so easily circumvented?

 

As it stands only the admin are going. However the role is still available under a different title it seems this post is going to another agency who's pay scale was allegedly less, so it appears that it is being done to cut costs if that is the case?

 

None of the admin from my friends company where given the option to move at a reduced rate should they wish to nor have they been considered for support roles.

 

I understand your point on redundancies post transfer however it makes a mockery of the tupe process if a company can dismiss staff adhoc under the guise of redundant roles lets face it if it's so easy to get round the regs why have them in the first place?

 

 

 

Will find out how this goes seems really unfair given the fact that until yesterday they where all tupe'ing over and are now left in a position that they are likely to be out of work when they could have been applying earlier for vacancies.

 

Just shows the usual contempt for staff.

 

Bill

[Emmzzi]

 

Just shows the usual contempt for staff.

 

Bill

 

Sweeping generalisation alert! Some of us work our socks off to be collaborative with our unions and employees!

[billathome65]

Yep sweeping statement :whoo:but not far from the truth I'm glad you are staff orientated but your one of a growing few. Blue Peter badge on it's way to you.

[Emmzzi]

Yep sweeping statement :whoo:but not far from the truth I'm glad you are staff orientated but your one of a growing few. Blue Peter badge on it's way to you.

 

You never hear about the vast majority of good employers as there's nothing to post to a forum about. However, I've no wish to get into it with someone with such an obvious chip on their shoulder. Good luck with your friend's situation.

[billathome65]

Emmzzi Just to say in response to your unfounded statement in your last post my observations are that I find at times your responses to be rude, and quite arrogant.

 

Just because I don't see the world through your eyes doesn't mean I have a chip on my shoulder. Just my views differ from yours on many things. and by making personal attacks like that all you do is lesson your credibility with myself personally, there was no need for it.

 

From the responses you have given to people and myself in some previous posts, I am assuming you are either an employer or in HR and I accept that we may not see eye to eye on some things, but I don't know you personally and you don't have a clue about me but at least I have had respect enough to accept your views and welcomed your constructiveness at times.

 

I have been informed today that colleagues at my friends Grimsby offices are taking legal action over the handling of the Tupe process even colleagues that have been accepted over, one of the reasons ( The way the new employers have treated them all. )

 

Whilst you may find my statement sweeping my views are based on a personal belief developed over the years, rightly or wrongly.

 

Yes, there are some bloody good employers out there, but they are becoming few and far between.

 

By all means feel free to challenge me on things, I honestly value your input, however please refrain from telling me I have a chip on my shoulder because my views differ from yours as I find it quite belittling.

 

And should you have nothing constructive to say to me then maybe it's best not to respond moving forwards.

 

Regards Bill

[Sidewinder]

Bill - Whilst Emmzzi is perfectly capable of answering your post the one thing that I will point out is that we see very many people here who find themselves in desperate situations, and your friend's is little different. If advice is blunt, this is often because there isn't the room to sugar-coat it. If that were the case then people could easily find themselves going down completely the wrong path and in fact making their situation worse. There are some very good, knowledgeable and capable advisors here, and quite understandably to apparently tar the good HR professionals with the bad can easily cause offence. We deal in facts, and not always the niceties that many would like to see.

 

The 2006 regulations were indeed designed to stamp out poor practice and the mistreatment of employees when a transfer takes place, however one must still work within the framework of the rules - which left many areas which could only be determined by caselaw.

 

Step back a little and re-read the earlier advice. I believe that there is significant scope to ask questions about whether the process has been lawful, and to act accordingly.

[billathome65]

Sidewider I have read all the advice and appreciate the advice however whilst I accept that Emmzzi or anyone else is welcome to say a statment I had made seemed to be a sweeping one and quite rightly put me right on that matter. I find it unacceptable in a follow up post to be told I clearly have a chip on my shoulder ( I have nothing of the sort on my shoulders apart from my head )

 

I may be quite opinionated but most certainly have no chip on my shoulders I accepted from Emmzzi's responce that taring was not welcome and stated clearly that there are some good employers and as far as i'm concerned the matter is closed hopefully.

 

I'm following my friend's situation very closely and hopefully the outcome will be helpful to others.

 

It would seem that at the moment the new company have totally underestimated the scope of the work the admin do and as such have acted discriminatingly when making the current decision (That's how I read it at the moment) it's a waiting game at the moment.

 

Regards Bill

[Emmzzi]

If I were the admin team I would be preparing a detailed work log of what I did related to the work that is transferring; how much time doing what tasks, etc.

[billathome65]

If I were the admin team I would be preparing a detailed work log of what I did related to the work that is transferring; how much time doing what tasks, etc.

 

That's exactly the information I said she needed to be putting forwards cheers it just confirms I was on the right track.

 

If she and the rest of the admin team wanted to highlight possible discrimination with the process what sort of areas could they be addressing in order to highlight that claim?

 

Regards Bill

[Emmzzi]

They just need to show the majority of their time has been spent on the work that's being transferred under the contract. I'm not sure a discrimination claim is anywhere near as helpful as a time log showing 95% of time on the work; that's really all they need.

 

There's no set percentage they need to hit; just "most of their time"

[billathome65]

Cheers Emmzzi I have past the information over.

 

Bill

[billathome65]

I quick update on this.

 

All staff have now joined a union ( good ) all staff have had the union pep talk. Now previously the current employer told the tupe staff who are being made redundant that at change over to go to the new provider and if turned away go for unfair dismissal ( BTW the consultation that should have started this week with the new contractors has not started. )

 

The union however have told the affected staff that when the contract ends to go into work with their current employer until they are served notice?

 

Now personally I feel that that is poor advice basically because

 

If they go to the old employer the new contractor doesn't have to deal with the legalities and can wash it's hands of the matter as the effected staff would in theory not be their staff if they remained with old employer ( Hope that makes sense? )

 

And then the old employer can say OK we have lost the last contract we no longer need you we are serving notice bye bye leaving the effected staff with no recourse?

 

Is my thinking right on this as I'd be inclined to go with the original advice.

 

Come on minds lets pool :)

 

Bill

[billathome65]

Just popped back as I believe in courtesy So just wanted to update on this the person previously affected by this was initially informed that they would not be Tupe'd over nor would they receive any redundancy payment as the old company were addiment that my friend had been transferred.

 

After some time speaking with my friend and devising a counter argument, she met with the HR department two weeks ago and laid her cards on the table what she expected from them.

 

Earlier this week she had her final meeting expecting to do battle. However the company has agreed to all terms and have agreed a payout of around £5000,00 most of which being tax free.

 

As a bonus the other people in her department even one colleague with less than two years service have also been offered and accepted final redundancy pay outs to.

 

She is due to sign the redundancy agreement today.

 

Anyway, I wanted to just update people on the final outcome out of respect before I sign out for good.

 

Cheers Bill

[Sidewinder]

Thanks for the update - that sounds like good news and hopefully the affected employees see fit to buy you a drink - you seem to have helped them to get a payment that wasn't previously on offer and might otherwise have taken a long and drawn out Tribunal action

 

Thread title amended