TUPE - Unlawful?

claireyfairy_2

Debt_Free_Chick wrote: »

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:)

So my current employer's redundancy policy would apply? It's not very generous!! What confuses the situation further is that the budget that currently pays for us is apparently travelling with us to the new employer. (So says current employer) but new employer denies there is any money!! If the money is there, surely new employer would be obliged to use that money to keep us transferred staff in our posts as they are providing the budget to continue our employment? I fear new employer is planning to use the money however they see fit!

claireyfairy_2

getmore4less wrote: »

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.

I think we'd get 1 week per full year of service + 60%. NHS would be one month per full year of service. Should have trained as a nurse!!

kazmeister

there is some more information on this link - page 16 regarding redundancy and TUPE

http://www.berr.gov.uk/files/file20761.pdf

claireyfairy_2

If you are involved in a transfer that qualifies for TUPE protection you should be guaranteed that your:

• job transfers over to the new company
• employment terms and conditions transfer
• continuity of employment is maintained

Taken this from Direct.gov.uk website

I would have thought making us redundant is not guaranteeing that 'continuity of employment is maintained' as currently I have a job!!!:rotfl:

Debt_Free_Chick

claireyfairy wrote: »

If you are involved in a transfer that qualifies for TUPE protection you should be guaranteed that your:

• job transfers over to the new company
• employment terms and conditions transfer
• continuity of employment is maintained

Taken this from Direct.gov.uk website

I would have thought making us redundant is not guaranteeing that 'continuity of employment is maintained' as currently I have a job!!!:rotfl:

You do have continuity of employment - your service with the old company counts as service with the new company. But no job is guaranteed for the future

Debt_Free_Chick

claireyfairy wrote: »

So my current employer's redundancy policy would apply? It's not very generous!!

Yes, your current redundancy terms apply, unless the new company opts to improve them. In basic terms, you can not be any worse off being made redundant by the new company than you would have been, had you been made redundant by the old company

What confuses the situation further is that the budget that currently pays for us is apparently travelling with us to the new employer. (So says current employer) but new employer denies there is any money!! If the money is there, surely new employer would be obliged to use that money to keep us transferred staff in our posts as they are providing the budget to continue our employment? I fear new employer is planning to use the money however they see fit!

Budget is not cash though. Indeed, "budget" is generally an expense to be met from the company's income.

But it's really irrelevant - the point is, does the new company have too many people to do the work that needs to be done? This is pretty much the test for redundancy, although there are some added complications. Essentially though, it's about assessing how the work is done and the number of staff needed to do it.

claireyfairy_2

Do we have any argument with new employer who is seeking to re structure with lower grade workers who will be newly recruited into posts?

Debt_Free_Chick

kazmeister wrote: »

there is some more information on this link - page 16 regarding redundancy and TUPE

http://www.berr.gov.uk/files/file20761.pdf

And especially page 18

"Dismissals on the grounds of redundancy are permitted by TUPE ....."

claireyfairy_2

'the point is, does the new company have too many people to do the work that needs to be done? This is pretty much the test for redundancy, although there are some added complications. Essentially though, it's about assessing how the work is done and the number of staff needed to do it.'

Short answer, no. Those who remain will be expected to do as much work as is currently done. They need to lose staff because they won the tender by saying they could provide what was being asked for on more than 30% less budget! :eek:
I'm thinking some basic maths would have been helpful!! Unfortunately in NHS there is a constant belief that more can be done with less, which at grass roots level is rarely the case. Most of us graft hard and then have to go home worrying of an evening too!

zzzLazyDaisy

They can make redundancies and the tribunal cannot question the business reasons behind the decision. But it must be a genuine redundancy situation, and they must follow proper procedures. This is particularly important where a TUPE transfer is concerned.

If you are a member of a union, make sure they are on the ball.

Otherwise, speak to ACAS, they give free impartial advice about employment disputes.