redundancy and TUPE 2006

dunton10

In March I was given 3 months notice that on 1st Aug I and my colleagues would be TUPEd over to a new company and that they would be conducting an operational review immediately after 1 Aug. My exisiting company confirmed verbally and in writing that it would protect its current redundancy terms for the first two years of the contract for those transferring under TUPe, thus offering some protection following the op review. I understand that the old company is picking up the cost of any redundancies made, which reading other posts on here seems to be a common practice.
Due to my age and length of service I had two redundancy options - 3.5 weeks pay for each year of service maximum 104 weeks OR 1 weeks pay for each year of service plus an immediate undiscounted pension.
The Op review has now been completed and as is often the case with these things I have now been put on notice of risk of redundancy.
However, I am now advised that only the "standard" redundancy package is on offer. This is substanially less in my case and I wonder if anyone is able to advise whether this is legal and acceptable. I am prepared to take this to tribunal if this is the recommended course of action. Do I have a case to insist on my enhanced package?
I am in the Union and upon challenging them their response was that protecting the "standard" package was the best they could negotiate or they were threatened with statutory redundancy being paid. the 3.5 week package is the best for the majority of the staff but where does that leave the 3 or 4 of us entitled to the "pension" option? I am advised that pensions are not covered by TUPe
Any advice appreciated.
May I add that in March I asked for VR but was told this was not available, my job wasnt at risk and I had to be TUPed and await the outcome of the review. Now I will be substantially worse off

SarEl

I would strongly suggest that you get legal advice - ask your union to get it, since you are a member. TUPE is hugely complex and it is important that a lawyer can see the documents. Your conditions of employment (all of them) are protected under TUPE and as such, whilst a pension transfer is not protected, the redundancy rights are - and hence, at this stage, so should your right to take a pension be. But it does need proper legal advice. Given the circumstances I believe that there may be case against both the old employer and the new one. The unions argument is, frankly, unbelievable - the new employer could not have ditched the redundancy scheme for the statutory one this close to a TUPE.

dunton10

Thanks for the reply.
The problem I have is that on our staff intranet site under Redundancy Terms it quotes " These redundancy terms do not constitute a contractual entitlement and are subject to variation from time to time at the Group's discretion. The Group reserves the right to make changes to the policy terms and payment formulae in line with business needs." This is what they are relying on, saying that as they are not contractual they are not covered by TUPe. For clarity they havent varied the terms - they are just choosing not to offer me one of the options that was, and still is, available had I not been TUPe transfered. Is this fair and reasonable in the eyes of a tribunal?
I take your point re legal advice and an appointment has been made to seek further advice but its interesting to get others opinions.
Thanks again.

SarEl

Yes, you need legal opinion. I can't give one over the internet based on the odd quote, you understand. Best to get some advice, and even a second opinion! These are difficult cases - and all lawyers hate TUPE anyway!

getmore4less

dunton10 wrote: »

Thanks for the reply.
The problem I have is that on our staff intranet site under Redundancy Terms it quotes " These redundancy terms do not constitute a contractual entitlement and are subject to variation from time to time at the Group's discretion. The Group reserves the right to make changes to the policy terms and payment formulae in line with business needs." This is what they are relying on, saying that as they are not contractual they are not covered by TUPe. For clarity they havent varied the terms - they are just choosing not to offer me one of the options that was, and still is, available had I not been TUPe transfered. Is this fair and reasonable in the eyes of a tribunal?
I take your point re legal advice and an appointment has been made to seek further advice but its interesting to get others opinions.
Thanks again.

So they are well know terms that every one knows about
were they negotiated
How many times have they been used
have they ever been varied.

There is a chance they may fall under custom and practice(C&P) if there are enough cases of them been used without variation.

Having terms that were initialy negotiated seems to be another positive that ETs like based on the cases I looked at when investigating a C&P issue.

Have you priced up making the pension up to the value required or delaying and using the redundancy money to live off till you are eligable for a non reduced pension.

If the old company is still offering this(pension) option to existing emplyees and it is part of the deal they pick up the tab for the costs associated with the initial review then an approach to the new company that you will fight them for the terms you believe to be contractual might get them to pressure the old company to allow the option since they will not want the hastle of a tribunal.

You need some legal help on this one, making up a pension can be expensive so is one a company will tend to consider defending.

dunton10

Thanks for your comments and advice.
Yes the terms are well known and widely publicised. they were negotiated by the Union and indeed varied against thier wishes in 2009, when the terms reduced from 2 weeks pay and an immediate pension to 1 week pay and an immediate pension.
the option that was available to me, but is being blocked now, would still be available had i not been transfered under TUPE and people in my department have been made redundant on these terms earlier in 2010.
I take your point about custom and practice.
I am taking legal advice now and solicitor has mentioned this as a possible way forward.
I am going to speak to pensions department to see if I can buy additional years, as this would be tax effecient. Its a final salary scheme (defined benfits) and I'm not sure if they allow this. If they do I can calculate whether its worthwhile should all else fail.
Our staff Intranet clearly states that redundancy terms are not contractual and the employer has already relied on this when imposing the earlier amemdments. i'm sure they will argue this again and say therefore not transfereable under TUPE.
They are making things difficult and I guess hoping I will give in.

getmore4less

2009 is a recent change so(IMO) they might have you on C&P having exercised the discretionary status and against the union.

A number of of companies and public sector exit schemes changed so you cannot double dip(pension and redundancy) you get the money or use it to boost the pension and keep whats left so this may be a comprimise option depends on the details and how many years short you are.


I wish I could find the transcript of the ET case that I used as the basis of a C&P claim(we did get the company to back down) it had a long list of points that are relevent but I think are not a lot of use to yourself now.