TUPE and Redundancy

Florrie_Fimble

Afternoon.

Simple problem really. After being TUPE'd over to another larger company, 90 day consultations have been started as part of a major reorganisation. However - the TUPE'd employees are being offered stat redundancy and a months wages whereas the existing employees are being offered up to 3 weeks pay for each year worked.

This is obviously a huge disparity in some cases. When we were given a chance to move to the other contract we were never told of any enhanced redundancy terms that came with it (almost no one moved to the new one - it was terrible) and indeed having read a copy of one available, it makes no mention of any. In fact none of our contracts (TUPE'd and original employees) say anything about redundancy terms at all.

We can't find any reason why we are being offered so much less. It concerns us that the TUPE'd employees are clearly much cheaper to be made redundant and this creates a selection bias when the restructure is a money saving exercise.

Any advice would be appreciated.

getmore4less

What redundacy terms did your previous employer use for any previous redundancies if any.

Allthough dificult if enough criteria are met a custom and practice for any better terms previously offered may be possible.

If none then you have what you have and the existing employees probaly have better terms hrough contratc or custom and practice.


Use the consultation to fight for common redundancy terms allthough getting the existing employees on side might not be easy.

Florrie_Fimble

It was our understanding that being TUPE'd meant we wouldn't suffer a material disadvantage. Previous redundancies by our former company were made on better terms and in some cases enhanced individually when challenged. However NEITHER company has/had any policy in place for redundancy terms in any contracts or conditions.

Another issue has been those who signed a new contract with a bonus scheme. A proviso was made that you have to be employed by the company when they choose to pay it, so even though people will have earned their bonus by meeting their targets, if the bonus payment is now made after the redundancies they will not receive it. This is a payment some people were told would make up the difference for the change in their pensions that would take place for going on the new contract. It feels like a bizarre con.

zzzLazyDaisy

Florrie_Fimble wrote: »

It was our understanding that being TUPE'd meant we wouldn't suffer a material disadvantage. Previous redundancies by our former company were made on better terms and in some cases enhanced individually when challenged. However NEITHER company has/had any policy in place for redundancy terms in any contracts or conditions.

Another issue has been those who signed a new contract with a bonus scheme. A proviso was made that you have to be employed by the company when they choose to pay it, so even though people will have earned their bonus by meeting their targets, if the bonus payment is now made after the redundancies they will not receive it. This is a payment some people were told would make up the difference for the change in their pensions that would take place for going on the new contract. It feels like a bizarre con.

I don't know if this helps but....

When you are transferred under TUPE you go to the new employer with all your contractual terms and conditions intact. This often means that the incoming employees are on different T&C's to the existing employees, and that might include redundancy payments, if applicable.

The only way you would be entitled to insist on an enhanced redundancy payment is if it can be shown that the redundancy packages paid by your previous employer were contractual. This would either be because the redundancy scheme was set out in a policy document which was incorporated into your contract (highly unlikely because of the tax disadvantages) or if it can be argued that the enhanced redundancy packages were always paid, and therefore were incorporated by virtue of custom and practice. But you seem to be saying that this was done for some and not others, in which case an argument of custom and practice is unlikely to succeed.

Re the bonus - it is perfectly legal for an employer to specify that you must be in employment at the time the bonus is paid. In the circumstances that you describe it is arguable that the employer would be in breach of contract by holding back payment of the bonus until after the redundancies have taken place, since they were intended to compensate the employees for other losses. But while I'd be happy to run an argument like that at tribunal I wouldn't give any guarantee of success. I think this point should be raised with the employer during the redundancy meetings/consultations.

Is there a union involved? In that case I'd take it up with the union.

Florrie_Fimble

ACAS have advised us to first put forward our view and then if necessary raise a grievance. The adviser said that because no employees (old and TUPE'd) currently have anything about redundancy in their contracts, to single out only the TUPE'd employees for less pay could be consider unfair.

We shall see how it goes!

A big song and dance was made about the new contracts and quite some pressure was applied to get as many people as possible to sign them. We were constantly told how important it was for us to all "feel like we belonged" etc and how all of us being on the same contracts was part of that and that the bonus scheme was to reward us for the hard work done and ahead. I was actually told I was being unnecessarily negative when I pointed out we could all be made redundant and have lost a years worth of pension contributions in exchange for no bonus.

Well 11 months later and I'm worried I gave them the bloody idea...

I should perhaps mention this is not a small company by any means. We have thousands of employees.

getmore4less

You might also want to arguefor your own reps since you are in a distinctly different group based o nthe redundancy terms.

How many times were enhanced payments made and were they known to all employees say through email or all staff meetings. and were they consitent apart from those that asked for more

You could try a custom and practice challenge on the redundancy terms you have been given but you will need evidence that the same package was given a few times, also helps if the terms were negotiated in some way by union or reps.