TUPE, do I have a good case to refuse transfer and am I even covered?

ad84

Hello!



I work for a company as part of a managed solutions team who support many customers.

One of these customers for which only 40-50% of my time is logged to has ended the contract with my company. It looks like they are going to offer to take on all of our team but I really don’t want to go.

Now the customer’s office is only 20 mins away from my current office but the main reason I don’t want to go is because the work we do for them is very basic and the work I do in the rest of my time for other customers is much more technical. So going to the other company would effectively mean taking a few big career steps backwards.

I have 2 questions, do I have a good case for refusing the offer taking into account the career change.

And am I even covered by Tupe considering the fact that I am not dedicated to that customer. My contract say nothing about being dedicated to any customers, it says that I support many. If I am not, this would be ideal as I would then either have to stay where I am or my current company would have to make me redundant if there is no work for me in the near future.



Many thanks for your help in advance, Adam

Jarndyce

As you are only partly employed on the transferring work, whether or not you transfer will be determined more by the attitude of the three parties involved (the two employers and you!) and whether there is any disagreement between you about whether or not you should or shouldn't transfer.

As it appears that you do not wish to transfer and the new employer is not requiring you to transfer, the key is going to be the attitude of your current employer. Clearly, if you stay and there is insufficient work for you, then you may be made redundant (you seem to suggest this may be a good thing!).

Equally, if there is any disagreement about whether you should transfer then things may get messy and legal.

So you need to ascertain the position of the two employers to your situation and take it from there.

SueC_2

Yes, you can refuse - TUPE is an entitlement not an obligation (on the employee).

The possible consequence though is that your existing employer may not have enough work for you and may make you redundant.

Tough choice.

SarEl

SueC wrote: »

Yes, you can refuse - TUPE is an entitlement not an obligation (on the employee).

The possible consequence though is that your existing employer may not have enough work for you and may make you redundant.

Tough choice.

Hmm - not exactly. It doies depend on the reasons why the OP is being TUPE'd and whether they stack up in law. And I'd have to say that most often they do stack up if the employer wants the TUPE. But refusing the TUPE isn't then a redundancy automatically (assuming there is no work to do) - it is almost certainly a resignation if the employer wishes to play hardball, and the odds of a tribunal supporting this would be quite high. I would have to advise that you are exceptionally careful about refusing a job in the hand, and as Jarndyce says - find out what the employers are likley to do if you refuse - before doing anything that decisive. Unless you want to be voluntarily unemployed with no redundancy pay and only an outside chance of a tribunal claim.

Jarndyce

SueC wrote: »

Yes, you can refuse - TUPE is an entitlement not an obligation (on the employee).

The possible consequence though is that your existing employer may not have enough work for you and may make you redundant.

Tough choice.

No it isn't! TUPE is a set of Regulations which protects employees' terms and conditions in the event that a relevant transfer is taking place. It is neither an entitlement nor an obligation on the employee.

If what you mean is that the employee has the choice as to whether they transfer or not, of course they do, but what is not known in this scenario is what will happen if he chooses not to, hence the need to find that out, or risk being deemed to have resigned.

SueC_2

Jarndyce wrote: »

No it isn't! TUPE is a set of Regulations which protects employees' terms and conditions in the event that a relevant transfer is taking place. It is neither an entitlement nor an obligation on the employee.

Calm down... I simply meant that where TUPE is deemed to apply, the employee is entitled to transfer to the new employer, but not obligated to. ie. If they choose not to transfer no-one is going to come kicking their door down, dragging them to the new employer and/or prosecuting them for not going of their own free will!

Jarndyce

SueC wrote: »

Calm down... I simply meant that where TUPE is deemed to apply, the employee is entitled to transfer to the new employer, but not obligated to. ie. If they choose not to transfer no-one is going to come kicking their door down, dragging them to the new employer and/or prosecuting them for not going of their own free will!

Maybe not, but they may well be coming to tell them they have dismissed themselves.

SueC_2

Jarndyce wrote: »

Maybe not, but they may well be coming to tell them they have dismissed themselves.

Yes, and that is the employee's choice... hence my pointing out that transfer is an entitlement not an obligation.

Jarndyce

SueC wrote: »

Yes, and that is the employee's choice... hence my pointing out that transfer is an entitlement not an obligation.

So basically you are saying that you felt it necessary to post a message reminding the OP that they have the right to resign?

Ok, thanks for that.:)

SueC_2

Jarndyce wrote: »

Ok, thanks for that.:)

You're welcome.

SarEl

SueC wrote: »

Yes, and that is the employee's choice... hence my pointing out that transfer is an entitlement not an obligation.

Well actually you didn't mention that this could be deemed a resignation. You said that "the possible consequence" would be redundancy. But there is a big difference between redundancy and resignation, and your post made it clear that redundancy might be the worst thing that could happen - it isn't by a long chalk.