Is my H.R acting properly ?

getmore4less

SarEl wrote: »

You are missing the point. There never was any alternative to the TUPE (didn't exist - it was a vague "promise" of some other jobs that didn't even exist) and this isn't a redundancy - the jobs still exist (they have been / are about to be transferred) and the only right of the employee is to transfer. Employees can refuse to transfer - that is a resignation, not a redundancy. Hence there is no right to a "suitable alternative vacancy". Yes, an employer can say to employees that if they refuse a transfer they will try to absorb them / redeploy them - but this is an offer over and above the legal requirement, that legal requirement being to ensure that workers are permitted to transfer their jobs to the new employer with terms and service intact. If the employer has a policy in place to utilise redeployment as a first option before termination then they must do that - but it is not a guarantee of the same / similar conditions in circumstances where an employee has chosen to refuse a TUPE. The same / similar conditions is the TUPE.

What this comes down to is very simple - the employer was not required to explain the legal position or their rights to the employees, and if you are making a decision which affects your future employment, then it is advisable to take advice on it before you make the decision, not after. I can't say that I think the employer has acted rightly, but I am not seeing anything here that shows they have acted unlawfully. Nor that they intend to.

But the OP says there was a choice it is not clear exactly how that was done.
If it was a might be able or join the other department then I agree but if it was described as genuine choice of TUPE or join this other group(new job just like any other internal change of job) then they would have been missled if the employer is now saying sorry you resigned.

SarEl

getmore4less wrote: »

But the OP says there was a choice it is not clear exactly how that was done.
If it was a might be able or join the other department then I agree but if it was described as genuine choice of TUPE or join this other group(new job just like any other internal change of job) then they would have been missled if the employer is now saying sorry you resigned.

I am sorry but you really are still missing the point. The employer is not subject to "misselling laws" or the trades descriptions act. Only to employment law. And employment law it 110% clear on this matter. If your job is outsourced then it is your right to transfer under TUPE. That is the only right - there is no right to any other choice, given or not. And there is a right for an employee to choose to refuse - which is meaningless because it is the right to resign. You don't get to refuse and have any other alternative as a right.

There is no choice in TUPE - it is TUPE or resign. Full stop.

So the only possible hope would have been if the employer had promised another job on the same terms. And it would have been a slender hope at that - as you very well know, promises are worth peanuts in employment law. But the employer actually promised nothing at all. The OP believed that some ill defined sort of verbal promise had been made about jobs in a department that didn't exist constituted a promise of alternative employment. It didn't. And it certainly didn't constitute a legal obligation.

And I have to repeat again - the employer is not responsible for advising employees on their legal position and rights. That is the job of trades unions, employees lawyers, or other employee advisors. They told employees, and I know how this will play out, that their jobs were subject to TUPE (true), but that they did not have to TUPE (true), and if they chose not to TUPE the employer would try to redeploy them into other jobs in this new department they were looking to create (also true). They did not promise what those jobs would be, how many of them there would be, or on what terms - or even that there would definitely be jobs. These were assumptions the employees incorrectly made.