TUPE advice please?

allioli

Hi forum,
This is my first post here. I would like to ask some advice concerning employment law. I have worked at the same place of work for many years, it's a pub which is brewery owned and tennanted. The tennant who I was employed with gave up the tennancy recently and we have a new landlord. The pub never closed and my employer changed when the new tennancy was signed.

My ex employed has issued all the staff, myself included P45's for the the tax year upto the date he left the pub and closed his business. My new employer has become aware that my former employer has issued these P45's and has said that we are now all new employees and our previous service no longer applies because we have been given P45 instead of P60's.

He seems to believe that we are now on probationary period terms and conditions and our former contracts not worth the paper they're written on, with no service at all, even though several employees have worked at the pub for over ten years.

Is this just wishfull thinking on his part or are we still covered by the TUPE legislation which I thought was introduced for situation like this?

Any advice greatly appreciated

SarEl

Sorry, it isn't wishful thinking on his part. TUPE probably does not apply - there are a lot of situations where it doesn't. The tenancy of a pub is a contract between the brewery and the tenant. Unless the tenancy agreement specifcially states that the tenant must take on the staff and liabilities of the previous tenant, then the tenant does not have to. And I very much doubt that any tenancy agreement would contain such a clause, nor do I believe it would be enforceable in law.

SarEl

PS - It may be worth checking with the brewery though (quietly I would suggest), as I believe that you should certainly have been entitled to redundancy from the previous tenant - assuming you didn't get it, which you didn't mention.

allioli

Business transfers



The key question is whether there is a transfer of an economic entity that retains its identity. To decide if there is a stable economic entity that is capable of being transferred, the factors to consider include:

• Is the type of business being conducted by the transferee (incoming business) the same as the transferor's (outgoing business)?
• Has there been a transfer of tangible assets such as building and moveable property (although this is not essential)?
• What is the value of the intangible assets at the time of the transfer?
• Have the majority of employees been taken over by the new employer?
• Have the customers been transferred?
• What is the degree of similarity of the activities carried on before and after?

If the answer to all (or in some cases several of) the above questions is 'yes', it is safe to assume that there has been a transfer of a stable economic entity.

Thanks for your post. I've lifted this from the TUPE Website. Surely, it applies as we are still selling pints to the same customers?

Hope you don't mind me asking but what is your qualification to answering my question are you an Employment lawyer? Thanks

DesG

allioli wrote: »

Hope you don't mind me asking but what is your qualification to answering my question are you an Employment lawyer? Thanks

As it happens, she is.

On the plus side if you don't qualify for TUPE, you might qualify for redundancy.

Cheers, Des.

SarEl

allioli wrote: »

Business transfers





The key question is whether there is a transfer of an economic entity that retains its identity. To decide if there is a stable economic entity that is capable of being transferred, the factors to consider include:

• Is the type of business being conducted by the transferee (incoming business) the same as the transferor's (outgoing business)?
• Has there been a transfer of tangible assets such as building and moveable property (although this is not essential)?
• What is the value of the intangible assets at the time of the transfer?
• Have the majority of employees been taken over by the new employer?
• Have the customers been transferred?
• What is the degree of similarity of the activities carried on before and after?

If the answer to all (or in some cases several of) the above questions is 'yes', it is safe to assume that there has been a transfer of a stable economic entity.

Thanks for your post. I've lifted this from the TUPE Website. Surely, it applies as we are still selling pints to the same customers?

Hope you don't mind me asking but what is your qualification to answering my question are you an Employment lawyer? Thanks

I don't mind you asking at all - I am a barrister specialising in employment law. Although it might have been a good idea to think about what the qualifications of who might answer on a public website maybe a little earlier And sought some proper legal advice.

But the problem here is that, as I said, the situation in a tenancy is not the same. It's akin to saying, "yes, you can rent the house, but you have to take granny too"! Tenancies are a special kind of employment relationship, and a different form of business arrangement. So as I said before, it really does matter what the tenancy agreement is between the brewery and the tenant. Despite what you have read, not all occasions when a business gets taken over by another (or appears to be) are subject to TUPE, and the actual laws are very long, very complex, and nobody with a brain cell would say that they fully understood them. So, for example, if I sell my business to you, then TUPE probably (but not necessarily) applies. But if I close down and make all my staff redundant and then sell the business to you it probably (but again, not necessarily) doesn't apply. In this case there is no relationship at all between your former employer (the previous tenant) and the new tenant. Both had entirely separate arrangements with the brewery. You are not employees of the brewery, so they cannot transfer you to the new tenant. The new tenant took on a tenancy, not a business (in the legal sense) - perhaps a new tenant has a large extended family and doesn't need any staff as they will run the pub. The brewery cannot (normally) dictate who he has to hire or if he has to hire anyone, nor can they dictate who he fires. Otherwise he is not a tenant, but an employee (a manager, if you like), in which case the brewery is legally responsible for all employment matters.

You quite certainly, in my view, would have a legal claim against the former tenant for redundancy pay, if the staff are not part of the tenancy deal (which as I said, would be unusual). But I think that TUPE would be unlikely - although I could not say for sure without seeing all the documentation relating to the tenancy agreement(s) of both tenants.

allioli

The pub has had two tennants within the last eighteen months the former of which liquidated the company February 2009. would I still be able to make a claim for redundancy?

K_Limpert

SarEl wrote: »

Despite what you have read, not all occasions when a business gets taken over by another (or appears to be) are subject to TUPE, and the actual laws are very long, very complex, and nobody with a brain cell would say that they fully understood them.

"Very long"? The Transfer of Undertakings (Protection of Employment) Regulations 2006 have 21 sections, with two schedules. For employment law, this legislation certainly isn't very long!

Allioli, as the business - the undertaking to run the pub - has been transferred to another person, and the pub will retain its identity; s.3(1)(a) of TUPE invariably applies (invariably in as far as anyone can give a comment on a forum, without seeing all information). If the new owner wants to make you redundant so granny can work the bar, they could do so, but TUPE will apply and the new tenant would be liable for this.

I can see no relevance to references to a dwelling where granny comes as part of the tenancy; we are discussing employment here.

And with respect to brain cells, Employment Appeal Tribunal judges make judgements on TUPE all the time (see www employmentappeals.gov.uk/ and look at judgements, topic "Transfer of Undertakings"). Personally I wouldn't suggest these judges don't understand what they're doing or lack a brain cell!

If you do a search on TUPE & pub tenancies, you'll also find the breweries recognise that TUPE applies, and advise this to prospective tenants.


Karl Limpert

allioli

Granny's still got a lot to offer! even if employment law in this situation sees her as a burden. I have to say the advice you are offering me completely contradictes the advice I'm being offered on other forums by other employment law profesionals.

dmg24

Karl, you appear to be advertising your company in your username, albeit without checking the spelling. This is not allowed on MSE. Please contact the MSE Team by clicking the Abuse button in your post to ask their permission to post as a company representative.

Googlewhacker

and this is why solicitors are rich, they offer differant views on the same information.

OP, if this information is not good enough for you then go and ACTUALLY see a solicitor and make your decision from there