TUPE advice please?

getmore4less

getmore4less wrote: »

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 wrote: »

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

The point is that the old employer has failed to terminate the contract correctly,

Should thye not have got the OP TUPEd over or made them redundant or....(any other options).

The p45, is a failry good indicator that you were their employee and the contract is terminated.

BigPhil

getmore4less wrote: »

The point is that the old employer has failed to terminate the contract correctly,

Should thye not have got the OP TUPEd over or made them redundant or....(any other options).

The job isn't redundant, so the dismissal would potentially be unfair.

The p45, is a failry good indicator that you were their employee and the contract is terminated.

An indicator only that the TUPE has been bungled, particularly when the incoming tenant has told the OP that his service has been broken, but the P45 in itself is a red herring - it just needs presenting to the new tenant to ensure that tax is deducted at the correct rate from his wages

K_Limpert

What is it with a P45 (a tax form) that people are so confused about?

According to Direct.gov.uk, "you get a P45 from your employer when you stop working for them"... as is the case here: the employee has (under TUPE terms) stopped working for his old employer, who has therefore concluded their responsibility for the tax affairs by issuing a P45, parts 2 & 3 of which should now be handed to the new employer so that they can apply the correct tax code.

It really is very simple, but it's a tax form and has absolutely no relevance to the issues. The employment with the old employer was terminated (the old employer has gone, finished, the employment relationship is over), there is no doubt about that! However, under the terms of the TUPE Regulations, it is very likely that the new employment is deemed to be continuing from the old employment (but as it's not with the same employer, the new employer requires the P45 in order to apply the correct tax code), and under the TUPE Regulations, the employee has 14 years of continuous service following the transfer of the activity to a new employer.



Karl Limpert

getmore4less

K_Limpert wrote: »

What is it with a P45 (a tax form) that people are so confused about?

According to Direct.gov.uk, "you get a P45 from your employer when you stop working for them"... as is the case here: the employee has (under TUPE terms) stopped working for his old employer, who has therefore concluded their responsibility for the tax affairs by issuing a P45, parts 2 & 3 of which should now be handed to the new employer so that they can apply the correct tax code.

It really is very simple, but it's a tax form and has absolutely no relevance to the issues. The employment with the old employer was terminated (the old employer has gone, finished, the employment relationship is over), there is no doubt about that! However, under the terms of the TUPE Regulations, it is very likely that the new employment is deemed to be continuing from the old employment (but as it's not with the same employer, the new employer requires the P45 in order to apply the correct tax code), and under the TUPE Regulations, the employee has 14 years of continuous service following the transfer of the activity to a new employer.



Karl Limpert

Does the old employer not have to terminate a contract correctly by ensuring that the employee is sacked,redundent or TUPEd

K_Limpert

getmore4less wrote: »

Does the old employer not have to terminate a contract correctly by ensuring that the employee is sacked,redundent or TUPEd

No, because for all intents & purposes, the termination comes to a natural end: the old employer gives up their business or activity, and a new employer picks up the reins; the day that the new employer does this is when the employment is terminated (with very little formality or fanfare) with the old employer.

The old employer does have procedural steps they have to follow with regard to TUPE (as does the new employer) but failing to follow these leaves them open to other claims, it doesn't void the application of TUPE, which is established by whether the activity/business is continuing in some form.



Karl Limpert

mariefab

The old employer does have procedural steps they have to follow with regard to TUPE (as does the new employer) but failing to follow these leaves them open to other claims,
I agree.

I'm not a legal expert, but it strikes me that, unless you can persuade your new employer that he is wrong, the way to sort this out is to let an Employment Tribunal decide.

You, or all the affected employees collectively, could make a claim under TUPE 15(1)(d) for breaches of TUPE sections 13 & 14; essentially failure to inform and consult.

In order to proceed a Tribunal would first need to decide whether a relevant transfer, TUPE 3(1), took place.

DVardysShadow

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.

SarEl wrote: »

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.

Post in haste, repent 40 minutes later.

I always understood it to be the case in transfers of employment that you either got redundancy or you were TUPE'd over.

That principle is more important than whether or not TUPE applies to the new tenant.

gner_ex

Zazen999 wrote: »

Someone is playing games with you.

The above was posted at 17:17, but on the forum that drew your new best friend here, it stated a minute earlier that you had given the above advice. Even with a time difference that's pretty quick to be shifting between fora and dismissing advice given.

Think one of the forums has the time set without daylight saving (or else european time).

If SarEl was a proper barrister then she would post the contact details of her chamber and invite people to contact her clerk to discuss her fee for appearing before the ET. As she hasn't done that, I think we can safely assume that her (or indeed he) is a fairly junior HR person who comes on here because she gets a buzz from other people telling her how wonderful she is.

On most normal forums, professional people post as a lead to possibly getting some work.

Savvy_Sue

gner_ex wrote: »

If SarEl was a proper barrister then she would post the contact details of her chamber and invite people to contact her clerk to discuss her fee for appearing before the ET. As she hasn't done that, I think we can safely assume that her (or indeed he) is a fairly junior HR person who comes on here because she gets a buzz from other people telling her how wonderful she is.

On most normal forums, professional people post as a lead to possibly getting some work.

But on MSE, that would be advertising, and would lead at best to posts being deleted. See the Forum Rules if in doubt.

Zazen999

gner_ex wrote: »

On most normal forums, professional people post as a lead to possibly getting some work.

This is not a normal forum!

I am a professional and answer questions in my professional capacity on MSE; but don't shout about it. Possibly SarEl could be anyone; but what they aren't is trying to tout for business by registering under their company name; or changing it to their own full name as some are wont to do...as we have seen on this and other recent threads.

I don't always agree with SarEl either; but I've got more to do with my life than hounding someone around t'internet harassing them.

Fora are full of know-it-alls; if you have a real proper problem, then take real proper advice; as advised by SarEl themselves many many times on here.