TUPE Advice

lo_bush · 10 August 2017 at 12:32PM

I work for an organisation (which is currently independently run by a charity) that is being taken over by the local authority. It has been a very stressful time for everybody involved and there has been a lot of bad feeling and mistrust (I shan't bore you with the politics of it all) We have been assured that everything will continue to operate the same (which is actually not really possible otherwise the take over would not be happening) and that staff jobs will be safe and their terms and conditions will be protected under TUPE.
I have looked into this a little, via the ACAS and .GOV.UK web sites but it seems to me that once you scratch the surface, this does not really offer a great deal of protection at all.......or am I misunderstanding it?
For example: If the local authority come in and 'restructure' due to 'economic' or 'organisational' reasons, they can perfectly legally reduce staffing levels and hours etc.
My understanding is that, in our case, senior roles may no longer be needed as 'management' will done by the local authority. however, there are apparently no planned redundancies, so I am assuming they will be offered a lesser role, this would obviously mean less hours/responsibility, which could be appealing but if they accept that change, could they enforce a lower hourly rate? In business terms that makes complete sense but what about the employee's 'Rights'?
What can TUPE actually do to help us.
Thanks in advance for any advice or help.

sangie595 · 10 August 2017 at 12:44PM

I'm afraid that you have summed it up perfectly. It may be that the greater size of the local authority can ensure absorbing people who are no longer required in their current roles at the same, or nearly the same conditions. But TUPE does not relay represent much of a protection for anyone. The one thing that you have operating in your favour is that most local authorities take TUPE regulations quite seriously and strive to operate within the intention of the law. I can't guarantee yours is one of them, of course.

lo_bush · 10 August 2017 at 1:30PM

Pretty much as I feared then?
How is the little guy supposed to defend themselves when the odds are so clearly stacked against them?

polgara · 10 August 2017 at 1:31PM

I'd agree with Sangie - going from private to public sector is generally better than the opposite way (and quite unusual as I spend most of my time transferring services out).

Also, there may be greater scope for development/upward movement - not as much as in the past but commitment and talent can be spotted during consultation processes so try and go in with a positive attitude. Also check what your policy (and the new employers') is around pay protection.

sangie595 · 10 August 2017 at 2:23PM

lo_bush wrote: »

Pretty much as I feared then?
How is the little guy supposed to defend themselves when the odds are so clearly stacked against them?

The answer is - you aren't. Employment law is not, contrary to most peoples ideas, based on the protection of employees or workers. It is based on the right of an employer to conduct their business. It trims the excesses of employers - so, blatantly unfair practice, really. But this is a capitalist society, and apart from that slight fuzzy edge to the law, it functions in the employers benefit. Nobody is entitled to a job. Nobody is entitled to any job. But an employer is entitled to conduct the business that they own and invest in to make profits, broadly as they see fit, with a minimum of regulation.

It isn't to my liking. It sounds like it isn't to yours either. But it is what it is. This is the way that the world works, and I find that it seldom pays any attention to what I like!

lo_bush · 11 August 2017 at 10:53AM

Sorry for all the questions but what are the rules around redundancies in this type of situation? I understand that redundancy can be offered if your job/role 'Ceases to exist'.
Can the outgoing employer offer redundancy (assuming the role will 'cease to exist' under the new management structure) or is that decision down to the new employer to decide? If a lesser role is offered by the new employer can the employee request/insist on a redundancy offer instead? And if a lesser role were to be on offer how 'different' does that role have to be in order that the original role is deemed to 'Cease to exist'? Obviously a few minor tweaks to Job Descriptions and responsibilities could be made with it still technically being the same role but how much change would deem it a different position? (I hope that makes sense, it's quite difficult to explain what I mean)
Thanks again for your help.

sangie595 · 11 August 2017 at 12:31PM

Sorry, but these questions are too theoretical for any useful answers:

lo_bush wrote: »

Sorry for all the questions but what are the rules around redundancies in this type of situation? I understand that redundancy can be offered if your job/role 'Ceases to exist'. "Can" be, but doesn't have to be. It all depends on the exact circumstances.

Can the outgoing employer offer redundancy (assuming the role will 'cease to exist' under the new management structure) or is that decision down to the new employer to decide? It could be either. It depends on the circumstances. If a lesser role is offered by the new employer can the employee request/insist on a redundancy offer instead? You can't insist on redundancy. You can request it. If it is refused and you refuse the job, then you would have to claim unfair dismissal. It all depends on the circumstances.

And if a lesser role were to be on offer how 'different' does that role have to be in order that the original role is deemed to 'Cease to exist'? Obviously a few minor tweaks to Job Descriptions and responsibilities could be made with it still technically being the same role but how much change would deem it a different position? (I hope that makes sense, it's quite difficult to explain what I mean) Impossible to say - it all depends... (altogether now!) ... on the circumstances!
Thanks again for your help.

The problem is that every situation is unique and individual. Something that is fair in one situation may not always be fair. Without the actual details, any information is always going to be as long as a piece of string.

lo_bush · 11 August 2017 at 12:52PM

sangie595 wrote: »

Sorry, but these questions are too theoretical for any useful answers:

The problem is that every situation is unique and individual. Something that is fair in one situation may not always be fair. Without the actual details, any information is always going to be as long as a piece of string.

Thank you so much for replying to me (or at least trying to, based on the very limited info I was able to give) I appreciate every situation is different but at the moment I cannot go into details as I do not actually have the details to give!!
Apart from it will be 'business as usual' 'nothing will change' (both of which are not actually possible in the circumstances) and 'TUPE will come in to play' (This, I have tried to research myself) we have been given no further details of what staff will be offered or expected to do............Oh and, I almost forgot, it will all be happening from the start of September :eek:.
All this uncertainty is not exactly making for a friendly happy workplace, as you can imagine!!!
Thanks again

sangie595 · 11 August 2017 at 1:00PM

I can. All I can really say at this point in time is that you are probably lucky that the TUPE is that way - into the local authority. They do, in fact, have rather rigorous processes and rules to apply, not so much because the law says they must, but because they develop processes to manage large organisations. If you come back when you have some details, then it will be easier to provide some answers for you.

ReadingTim · 11 August 2017 at 3:12PM

it is worth noting however, to the extent it's not obvious; that there's little preventing the current employer from "restructuring" in the same manner either - they'd have to go through the redundancy process, individually or collectively, depending on the number of roles affected, just like the new employer would.

Obviously, it's more likely (and indeed necessary) after a takeover/outsourcing situation, but the possibility exists even if there's no change of employer.

Savvy_Sue · 13 August 2017 at 3:17AM

I think worth saying that for those of you not yet in a union, the time to join is now ... not when you feel you really need one!

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