TUPE & Mobility Clauses

krazyburd23

Hi,

I am just looking for a little advice with regards to mobility clauses and TUPE.

I have been told today that I am officially in TUPE consultation as the part of the company I work for has been sold. My first official consultation meeting is on Friday and we are due to be transferred on 16th Jan.

During the questions and answer session I asked with regards to the location of the new company and if we could not get there would redundancy be the next option. The plain and simple answer was no. They said it wouldnt be redundancy as the role still exists, therefore if I dont want to go I would have to resign.

I have checked my contract and it says the following: - Place of work - (my current location) or at one of the groups other offices should the nature of your job require it.

I currently work locally and the new role is not local for me and will increase my travel time from 30-45 minutes to just under 2 hours. Also, I am terrified of trains (which they know and never make me travel on them). I dont drive so I would have no other option to commute using the trains and tubes which would cause me no end of stress and anxiety. More importantly I have a family to consider.

I feel that it is unreasonable, am I right or can they really say take it or leave it!? How I see it is I have signed up potentially for their locations, not any other tom !!!!!! or harry they sell us to?

Can anyone shed any light on this at all for me please, any advice would be soo gratefully received

Andy_L

As you have a mobility obligation to "any of the groups other offices" then your choice is relocation or [STRIKE]redundancy[/STRIKE] resignation

krazyburd23

thanks andy, but they specifically said it cant be redundancy as my role still exists so does that mean that my only option is to relocate? if so that just seems so unfair to me. as far as im concerned this isnt one of their offices its an office for a totally different company, so would the mobility clause still cover that?

getmore4less

How many people are involved?
Are they needed to make the transfer work?
How many unhappy with the need to relocate office.

group action through reps/union is one approach.

The relocation clause will tranfer with you so may scupper any redundancy option.

if you search using keywords like : relocation mobility clause employment tribunal : you will find varying opinions.

ultimaty if you can't relocate and want redundancy/compensation it might involve an ET if they won't accept that option.

Andy_L

krazyburd23 wrote: »

thanks andy, but they specifically said it cant be redundancy as my role still exists so does that mean that my only option is to relocate? if so that just seems so unfair to me. as far as im concerned this isnt one of their offices its an office for a totally different company, so would the mobility clause still cover that?

Sorry, my mistake. That should be "relocation or resignation" (original edited)

Unless your original contract specified a list of the groups offices then the phrase "one of the groups other offices" now applies to all the new employers offices - its the swings & roundabouts nature of TUPE. Does your current contract specify any payment to cover the extra travel?

Are all the old companies offices closer than the new one? If so you could try and argue that the mobility clause is to a limited geographic area rather than country/world-wide

http://www.direct.gov.uk/en/Employment/Employees/EmploymentContractsAndConditions/DG_10028541

snowcat53

There is some case law which may be relevant but i do suggest you need expert legal advice quickly, from your union if you are in one, or check your household insurance for legal cover.

Google 'Tapere v south london & maudsley trust' re an EAT ruling from 2009 (there are many links)

eg "This case is a useful illustration of issues surrounding mobility clauses in the context of a TUPE transfer. The courts will not "read in" a different meaning where the new employer is in a different location - the purpose of TUPE is (as the name implies) the protection of employees, not the facilitation of the new employer's business. This means that if there is a TUPE transfer to an employer in a different location, it may find that it cannot force employees to relocate without being in breach of contract. It is also a reminder that the operation of mobility clauses is not subject to a general test of reasonableness."

"Under Regulation 4(9) of TUPE if a transferring employee can show that a TUPE transfer involves or would involve a substantial change in their working conditions which is to their material detriment, the employee may treat their employment contract as being terminated and shall be treated as having been dismissed. "
(ie would lead to an ET claim for unfair dismissal)

Whether this applies to you depends very much on your contract and circumstances, hence the need for specific advice

EDIT : Crucial would seem to be the point that you say your contract says "at one of the group's other offices". If the new site you are being asked to transfer to was not one of those when you signed the contract,(and i presume not as it is the transferee's site) you may have a case. Perhaps SarEl or Jarndyce have a view

krazyburd23

Thanks for your replies guys, they are really helpful Here are the answers to your questions

getmore4less wrote: »

How many people are involved?
Are they needed to make the transfer work?
How many unhappy with the need to relocate office.

There are 5 of us involved in the situation, but it looking likely the relocation thing will only affect me as the rest of the team are already based in London. There used to be more of us in my office but they made them redundant a few months ago, which left me there on my own. They did ask me to go to London already but as I am terrified of trains I declined. This is another thing that worries me, I am already feeling the burn in my chest thinking about the possibility of having to get a train every day and maybe even a tube and I am so upset because they know this and have always come to visit me instead of putting me through it They know this will cause me a massive amount of stress and anxiety so I am feeling really like that have backed me into a corner

Andy_L wrote: »

Does your current contract specify any payment to cover the extra travel?

Are all the old companies offices closer than the new one?

Nope, there is no mention of extra money for travel. All it states is the above, it doesnt go into any further detail. I have emailed HR today to ask what they interpret it to mean and should hopefully get an answer in my consultation tomorrow.

At the moment we are guessing at the location based on what we found on google relating to the new company. When we asked them where the new company was they were really cagey and told us they would find out and get back to us!? (not sure how they dont know considering they have probably spent months negotiating the whole thing). If our guess is correct then the new offices would be further away than those of the current company. Their head office on the other hand is a huge distance from all of us and would require everyone to relocate.

snowcat53

So, are you a member of a trade union? Is there a recognisedd TU in the workplace? (too late to join and get help now though). Alternatively do you have access to legal advice via your home (or other) insurance policy? Thsi should be your first priority. I cannot stress strongly enough you need to get some proper legal advice urgently.

Remember HR look after the company's interests not yours. In my experience (and I have been through a TUPE) many companies and HR depts know very little about TUPE and will bluff their way through unless challenged.

They are required to consult and there should be a statement of 'measures' - which I would think shoudl certainly include details of change of base.

On the face of it you may have a good case (although I am not a legal expert) so please do act and fight, dont just accept it.

getmore4less

You need to look for angles:

Looks like the redundancies were part of a restructure to make the sale viable.

Why did they keep you?
Were the other team pooled with yours for the previous redundancies?
Is it more than 3 months?

Any way you can argue you are not part of the team anymore.

Do the new companyy have any offices near your current one.

What about working from home.

What do the other 4 think about the transfer?


DO NOT BELIEVE YOUR HR

krazyburd23

Thanks for getting back to me, unfortunately I am not in any unions and I dont have home insurance as we rent so I guess thats not an option either.

I am on holiday after tomorrow so I will get my backside straight to CAB, hopefully they will be able to give me some help? I did try and call ACAS today but didnt really find them much use to be honest. They didnt seem like they wanted to answer my questions and just kept reminding of the bad timing before Christmas and telling me to call back if I want to know anything else.

Luckily for me and unluckily for them I will always fight back if I dont agree with something and I am ready for the battle to commence

I will update you after tomorrows consultation when I know a bit more about what they are up to. The initial meeting when they started the consultation process was literally a half hour conference call and I couldnt really hear everything that was being said. It seemed solely for getting the ball rolling on their part, they barely gave us any information.

snowcat53

Not sure how helpful CAB will be but try.

It is still possible to find a good employment lawyer and pay for advice. It may be the best money you ever spent if it stops you losing your job.