TUPE advice please?

CFC

Or call ACAS for a start, OP.

Karl, just to clarify, this website isn't yours, then?
web site link removed to avoid giving him free advertising.

allioli

I am a genuine poster with a genuine employment issue. I registered as a new user yesterday as I didn't want to use my usual user account on this site as it contains my actual name.

As you've forced my arm, and to defend those posters from another site who have genuinely come to this site to contradict, what they see as bad advice given to me, my usual posting username is allanwhyte77. Anyone can check my posts, made over several years, many of which refer to my concern over the pub tennancy takeover.

allanwhyte77

Just to confirm this I've logged out as allioli and logged back in under my name. As you can see the time between posting should confirm I'm a genuine employee with a real employment issue.

getmore4less

There are plenty of cases where a business can be taken over and TUPE does not apply because from an employees point of view nothing has changed they are still employed by the same entity.

From a practical point of view the old tennant has issued a P45 so perhaps start there with a claim for redundancy from that employer, if they don't want to pay it then they will have to show that you were not entitled for another reason.

DavePoole

The P45 is a tax matter and has no bearing on employment law.

allanwhyte77

My last employer only had the pub 18 months so I wouldn't qualify for redundancy as it's less than 2 years surely. The tennant before him I worked for for 12 years. He's now in Australia and he liquidated the business before he left.

My employment has been unbroken

K_Limpert

highguyuk wrote: »

Whilst this thread is now very confusing with all the posters, I don't see why the conversation continues.

The conversation continues because there is some pretty poor advice on this thread, and that will remain for all to find in the future. Therefore, it's sensible to challenge this.

SarEl wrote: »

Aha - it becomes clear. Hello Karl x 2. I gave no professional advice, and made it clear that nobody would without seeing the paperwork involved. I made it clear that whether or not TUPE applied was based on the terms of employment and the tenancy agreements, none of which I had seen.

But Karl I have come across before. He posts to a site offering free law advice using a fictitious user name, pretending to be an employee in distress. He waits until there is an answer and then arrives as himself to dispute it. In so doing he advertises his own business and gets free advertising.

I am sure he will be denying this, but consider the case in point - there are several lawyers of various sorts who offer advice on this forum. None of them advertises their business, nor uses a user ID that can identify them to the general public. None of them offers anything but advice. Karl offers certainty - even though he knows nothing about the terms of the case. He suggests that TUPE is straighforward - ignoring the fact that by his own admission it has found it's way to the EAT many times, and is massively shaped by caselaw as a result, precisely because it is so complex in practice.

Beware of any "lawyer" who offers certainty and needs free advertising - you don't find any of the rest of us doing so.

What absolute drivel are you talking SarEl? If you cared to check your facts (normally a good starting place) you would find that "allioli" posted on several forums yesterday. Initially I replied on only one of them, but when I was alerted to your advice on here, I signed up. As is quite common, I use my business name on most forums I subscribe to; nothing strange about that. If "allioli" was posting simply to get advertising, I really would have expected to reply on other forums too.

You stated in this thread that the actual TUPE laws are very long. At 21 sections, they most certainly are not.

You then claim that by finding it's (sic) way to the EAT somehow proves that it is so complex in practice. The EAT has dealt with all areas of employment law many times; that does not make all employment law "so complex in practice".

You also suggest no-one but me offers certainty, yet in your first post on this thread you stated that TUPE "probably does not apply", and continue by explaining this would be governed solely the tenancy agreement.

Anyone that practices employment law will know that TUPE cannot be bypassed by agreements between the parties; the tenancy agreement has absolutely no relevance to the employment transferring, and there is no need to see that document to determine whether this employment would or would not be protected by TUPE when the employer is relying solely on the issuing of a tax form.


Let's further explore your assertions about a lack of certainty from anyone but me on this forum:

SarEl wrote: »

I am sure he will be denying this, but consider the case in point - there are several lawyers of various sorts who offer advice on this forum. None of them advertises their business, nor uses a user ID that can identify them to the general public. None of them offers anything but advice. Karl offers certainty - even though he knows nothing about the terms of the case.

Well, there was a thread number 35466599 (Advice Needed - Employer Ratracting Carried Over Holiday) where you stated "The law does not allow you to carry over annual leave - in fact if it is part of the statutory entitlement of 28 days, the law is even clearer and you cannot carry it over."

I'd say that's pretty much a statement of certainty, albeit an entirely incorrect one! The 20 days of statutory leave cannot normally be carried forward, but it is permissible if the employee was prevented from taking this due to sick leave. The further 8 days leave provided for by s.13A of the Working Time Regulations 1998 are not governed by the same European rules, and they can be carried forward at the discretion of the employer. There is nothing in law to prevent this.

In a further post from you on that thread, you stated that "The law states specifically that statutory leave both must be taken and may not be carried over leave years. Full stop and no negotiating." But that isn't true at all is it SarEl? First it doesn't apply to the 8 days, and secondly there are circumstances in which the leave can be carried forward.


What about the thread 2640609 (Employer Unilaterally Reducing Salary- Big Bucks!)? In this thread you stated that " in order to make any valid claim you must have submitted a grievance to the employer." Must"? That implies a certainty, wouldn't you say? Of course there is no such obligation since the statutory dispute procedures were repealed; it is advisable, but certainly not a must.

I could go on, but I think my point is made SarEl. You didn't like being pulled up for offering what was pretty poor advice, and you turned the thread into cheap shots about me trying to get advertising. The fact is that you give out a lot of poor advice on this forum, you talk drivel, and dress it up as some authoritative opinion, but you don't like it when someone exposes you. I can only feel sorry for the people that listen to your advice, but hopefully people can make up their own mind about lawyers who don't know the law.


Karl Limpert

highguyuk

Employment_Law_Clinc wrote: »

The conversation continues because there is some pretty poor advice on this thread, and that will remain for all to find in the future. Therefore, it's sensible to challenge this.

I hope it does. Whenever anyone Googles Employment Law Clinic hopefully they will see this thread and the mess that's on it and not employ you in the future!

SarEl

I don't intend to be drawn into lengthy arguments with an ambulance chaser. However, I would point out that my advice is based on the actual information in the relevant threads, and not on fictionalised versions of the world.

K_Limpert wrote: »

Anyone that practices employment law will know that TUPE cannot be bypassed by agreements between the parties; the tenancy agreement has absolutely no relevance to the employment transferring, and there is no need to see that document to determine whether this employment would or would not be protected by TUPE when the employer is relying solely on the issuing of a tax form..... I agree that TUPE cannot be bypassed by agreements between the parties, but the parties in this case are the former and the current tenant, who are the employers. There was no agreement of any sort between these parties. The agreements are between the former tenant and the brewery, and the current tenant and the brewery. This means that TUPE may, or may not apply, and without any inspection of the actual circumstances and documentation there can be no certainty as to whether it does or not.


Well, there was a thread number 35466599 (Advice Needed - Employer Ratracting Carried Over Holiday) where you stated "The law does not allow you to carry over annual leave - in fact if it is part of the statutory entitlement of 28 days, the law is even clearer and you cannot carry it over.".... I accept that there are circumstances in which statutory leave may be carried over. But since not a single one of these circumstances applied to the OP, what on earth would have been the point of telling him or her that they could have done "if they were on maternity leave" / "if they were on long-term sick leave"? Hardly useful advice. In the circumstances described by the OP the law is very clear - carry over is not permitted. I could equally have said that carry-over of the 8 days that you refer to is permitted. But since that is only the case where a written agrreement exists to this effect, and the OP didn't have one, it is hardly useful advice.


What about the thread 2640609 (Employer Unilaterally Reducing Salary- Big Bucks!)? In this thread you stated that " in order to make any valid claim you must have submitted a grievance to the employer." Must"? That implies a certainty, wouldn't you say? Of course there is no such obligation since the statutory dispute procedures were repealed; it is advisable, but certainly not a must. I am perfectly aware that the statutory dispute procedures have been repealed. But since they have no relevance to the OP then it wouldn't be very useful to mention this, would it? The thread is about breach of contract in relation to an alleged unilateral change of terms and conditions. The OP could have repudiated the change, either by resigning with immediate effect (which they did not do) or by lodging a grievance of working under protest and bringing a breach of contract claim. The OP did neither, and instead continued to work without doing anything about it under the new terms. On this basis there is no valid claim for breach of contract - as I said.



Karl Limpert

You are entitled to your opinion, as I am to mine. But scoring points based on quoting law out of context which does not apply to the actual situation is a cheap shot. It only shows that you have swallowed a law book, it does not help the OP's.

gner_ex

SarEl wrote: »

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.

No way is this lady an employment law barrister. Even if the tenancy document is silent on the issue of staff, landlord number 2 has inherited a business (or part of a business) which employs staff.

In fact, even if the "tenancy contract" says that he doesn't inherit any staff, I think you will find that a tribunal will overrule that.

If you really are a barrister, please post the contact details of your chambers and I will call your clerk to apologise.