TUPE Issue

downshifted

A friend of mine has been told by her current employer that she is being TUPE transferred tomorrow. They first told her about a month ago. The union has been involved and because of this she is also aware that the new employer disputes the transfer. Also there has been no contact from the new employer.

If my friend turns up at the new employer tomorrow, as formally instructed in writing by her current employer, and the new employer just tells her to go away - what does she do next?

The union have been unavailable for support or comment today and my friend is quite distraught at the way she has been treated - she seems to be in the middle of an employer dispute and may well be left with no income while it goes to Employment Tribunal :mad:

All advice welcome

Francis_W

has she worked for the first employer?

downshifted

Francis_W wrote: »

has she worked for the first employer?

Yes.........now being transferred back - except 1st employer does not accept it is TUPE

DVardysShadow

downshifted wrote: »

Yes.........now being transferred back - except 1st employer does not accept it is TUPE

???? please clarify this. 1st employer must accept that themselves to 2nd employer is TUPE. So what do you mean?

Friend must go to 2nd employer tomorrow, as 1st employer has been good enough to provide this in writing [keep this letter carefully]. This will be difficult, but it is the correct way to take this forward. Friend should present copy of letter from 1st employer when turning up at 2nd employer. Friend should present a copy of the letter from 1st employer and if not accepted to work at 2nd employer should ask for a letter to say they s/he is not accepted as a TUPE transfer. Hopefully, 2nd employer will be helpful. Friend should then go back to 1st employer and hand over a copy of the letter from the 2nd employer, but keep the original.

Friend should continue to report to 1st employer until this is resolved.

downshifted

1st Tupe transfer was many years ago. Now there is an argument (we think) about whether there is still work and who should be doing it. Second company have told her she is TUPEing over - but it seems likely original company will say go away when she turns up tomorrow. Thanks for your advice - it will be very stressful to be going to 2 different workplaces and be turned away

Mudd14

Sounds likea failure to consult under the TUPe regulations 2006 as well as a breach of contract depending on what happens?

Im afraid more information is needed about what the company does, how did the potential TUPE come about? I would suggest discussing with ACAS who can help resolve the issue.

ceridwen

DVardysShadow wrote: »

???? please clarify this. 1st employer must accept that themselves to 2nd employer is TUPE. So what do you mean?

Friend must go to 2nd employer tomorrow, as 1st employer has been good enough to provide this in writing [keep this letter carefully]. This will be difficult, but it is the correct way to take this forward. Friend should present copy of letter from 1st employer when turning up at 2nd employer. Friend should present a copy of the letter from 1st employer and if not accepted to work at 2nd employer should ask for a letter to say they s/he is not accepted as a TUPE transfer. Hopefully, 2nd employer will be helpful. Friend should then go back to 1st employer and hand over a copy of the letter from the 2nd employer, but keep the original.

Friend should continue to report to 1st employer until this is resolved.

Good advice.

Second re that letter - its "gold dust" and needs to be kept under lock and key (ie take a copy of it BEFORE presenting it to 2nd employer - just in case it doesnt get handed back by them). Things have a way of getting mysteriously:cool: "lost" when employers want them to and I anticipate the second employer may very well choose to "lose" the letter if they get their hands on it physically.

My guess is that if 2nd employer refuses to accept that your friend is their employee - then (after having got a letter from them saying this if at all possible) then the person needs to go back to firm 1 and just sit there - until they either accept your friend is still their employee on the one hand OR accept she is still their employee and make her redundant on the other hand.

They will also be hoping that letter gets "lost" and may even have given a "wink and a nod" to firm 2 to "lose" it.

downshifted

Friend has been to both workplaces and turned away today. Both have said they will confirm their action in writing and the union is waking up a bit more to the seriousness of the situation. She has all paperwork at home. I think these two employers have been down this road before - but more often with groups rather than one lone person.......she is obviously feeling very worried and alone in all this. I will keep you updated with the outcome. I guess it must end in a compromise agreement - unless it goes all the way through the Tribunal process

ceridwen

Sounds like the job has definitely gone then..

Well - one of them will HAVE to give her her notice period/holiday pay due/redundancy pay - and I would say that would have to be firm 1. They're obviously trying to wriggle out of it - but, as long as she has relevant proof that she does/did work at Firm 1 and the letter stating she doesnt work at Firm 2 - then I dont see how Firm 1 could manage to get out of paying what is due to her.

CFC

It's very difficult and I have seen this before. Your friend will quite probably need to take the second employer (the one to which she is currently being TUPE'd now) to tribunal. Usually it is the employer taking over the work/contract who is in the wrong factually or is trying to avoid redundancy payments. This kind of confused situation is often a result of an outsourced contract being won by a different company and the second company not understanding the implications of winning the contract. Hopefully she will receive excellent support from her union to go down this route.

DVardysShadow

Hmm, I would argue that she should take the 1st company to a tribunal, because she has not been TUPE'd and the 1st company would be responsible for redundancy. If the 2nd company have never given any indication of accepting the TUPE, then they are in a strong position to argue that the 1st company have completely made up the TUPE - and by the time that stage is reached, you are out of time to take the 1st company to a tribunal.

Alternatively, take them both to the tribunal and let be sorted out in pre hearing correspondence as to who gets put on as defendant. but good advice would be needed on this course of action.