TUPE - Unlawful?

claireyfairy_2

I work for a local authority. Following a tender being awarded, 3 staff have been advised that they will be TUPE'd to the NHS. (We had been advised of the TUPE situation prior to the tender being awarded) The NHS trust now say that all posts will be at risk (Including us as it is asumed we will be TUPE'd) Does anybody know if our current employer can lawfully TUPE us knowing that our jobs will be at risk with the trust?

74jax

Up until last Friday I worked for Halifax Estate Agents. I was TUPE'd to LSL (who own Your Move) last Friday and they have made me redundant starting this Friday coming.

I think this is similar to your situation.

claireyfairy_2

I think you'd have a case. They can only make you redundant for ETO reasons, not purely because the transfer has taken place. I think ETO stands for economic, technical or operational reasons. Was there cause to believe prior to the transfer that your job would be at risk? We figure that if our employer is knowingly putting us at risk by TUPE, then it may be unlawful. We also figure that local authorities and NHS might actually know the rules, but they appear to be unclear!!

Mudd14

Its very tricky and I wouls suggest talking to ACAS as there is no yes or no answer. However, as you already know it must be a ETO reason, is it?

claireyfairy_2

As for my situation we would argue against the TUPE to begin with but if it does go ahead, the budget to provide he new service on has been cut and therefore the staffing has to be cut. Concerning that as TUPE does not cover pensions and we would not have been part of NHS pension scheme for 2 years or more, we'd get no redundancy, so it would be cheaper to get rid of us and redeploy health staff. The trust will want to avoid making health staff redundant as that is costly. The service is however, supposed to be integrated ie have staff from both disciplines.

battleram

I'm not sure if the information I can offer will help, but it is own experience of a possible unfair dismissal case under TUPE regulations.

The company I was working for was in the process of being sold and taken over. All off the staff under the TUPE regulations were to be transferred to the new site to work. After a period of integration the new company was to make decisions of which staff were needed - redundancies could affect all of the staff of the new company - even the ones that worked there previously and not just been transferred over.

In my case, the new company did not want my department to transfer to the new company (they had more than enough staff in that area of expertise (accounts) under TUPE regulations and the sale would not go ahead until my department had negotiated their leaving package and signed a Compromise Agreement acknowledging that we'd waived our rights to take the case to a tribunal for unfair dismissal.

I don't think it's fair or right that you would be Tupe'd over to a company that has already decided you are not needed. I do think you should seek advice from ACAS on this matter to ensure you are getting good, relevant advice.

Debt_Free_Chick

claireyfairy wrote: »

I work for a local authority. Following a tender being awarded, 3 staff have been advised that they will be TUPE'd to the NHS. (We had been advised of the TUPE situation prior to the tender being awarded) The NHS trust now say that all posts will be at risk (Including us as it is asumed we will be TUPE'd) Does anybody know if our current employer can lawfully TUPE us knowing that our jobs will be at risk with the trust?

Yes they can. And there are likely to have been discussions over this.

So long as the reason for redundancy is genuine and not simply the transfer, itself, then it doesn't really matter which employer makes the posts redundant.

In this situation, TUPE will ensure that your redundancy rights reflect all of your service and not just the bit with the new employer (which is what used to happen before TUPE :eek:)

claireyfairy_2

Will ACAS offer advice Free of charge? Have heard of them, but no more than that. Sounds like they would be useful?

getmore4less

claireyfairy wrote: »

As for my situation we would argue against the TUPE to begin with but if it does go ahead, the budget to provide he new service on has been cut and therefore the staffing has to be cut. Concerning that as TUPE does not cover pensions and we would not have been part of NHS pension scheme for 2 years or more, we'd get no redundancy, so it would be cheaper to get rid of us and redeploy health staff. The trust will want to avoid making health staff redundant as that is costly. The service is however, supposed to be integrated ie have staff from both disciplines.

Service should transfer from the old employer.

The redundancy terms should not be related to pension arrangments

What redundancy terms does the current employer offer or done in practice, these should be covered as part of the transfer either through contract or custom and practice.

kazmeister

Hi

sorry to hearabout this situation for you. If you are going to the other company (NHS) then your length of service should transfer as well, so if you have been with currrent employer for 2 years you will get redundancy. Whether they can TUPE you over knowing you will be made redundant is a different question. There is some information in this link but if not as others have said try ACAS

http://www.direct.gov.uk/en/Employment/RedundancyAndLeavingYourJob/DG_10026691

battleram

http://www.acas.org.uk/index.aspx?articleid=1461

It won't go into too much detail on here but it will include the contact numbers you need.