"TUPE" and Redundancy

Evie74_2

Hello everyone

This is the first time I have posted on this board, and wonder if anyone could advise me please?

My husband has worked for company A for the past 15.5 years. Most recently, he has been involved with a contract for work on behalf of company B. In May this year, company B advised company A that they would be taking the contract back in-house, and that once they had done that, the work would be undertaken at a geographical location 200 miles away.

Company A advised my husband that his contract would be transferred to company B under the "TUPE" provisions with effect from 1 August 2012. Company B was very quiet and didn't give any indication of what it expected to happen to all the employees being transferred over to it.

My husband has come home from work today with a sheaf of leaflets from company B. It seems that company B gave a presentation to some employees of company A last week, but that nothing had been reported back to my husband (or most of his colleagues for that matter) at that time. In the leaflets, company B states that formal 30 day consultation with the affected "TUPE" employees began on 20 June, and that redundancy is effectively on the cards for those employees from 1 August. They plan to have 1:1 meetings with everyone over the next couple of weeks, but the gist of it is that unless they agree to go to work 200 miles away, that's it. And even then, they may not have work for them.

They go on to set out the statutory redundancy payment calculations etc.

My question is this: does anyone know whether company B can actually put the employees into consultation at this stage, given that those people are not in fact employed by company B at the moment? Company A couldn't be less interested, btw, and have washed their hands of the whole thing...

Also, if company B can legally start consultation with everyone even though it doesn't employ them, surely they should have told them on 20 June, rather than leaving it for the best part of a week?

I'm just very confused and wondered if anyone has had any experience of this sort of thing and can help us? Many thanks in advance.

I've got a horrible feeling we are going to have to seek legal advice, and I don't think we can afford to

Thank you again

Evie xx

snowcat53

hello and welcome to the forum.

TUPE stands for Transfer of Undertakings (Protection of employment) regulations -and that is its purpose – to protect employees when their employment is transferred from one organisation (the sender or transferor) to another (the receiver or transferee). For those transferring their terms and conditions should remain unchanged.

What you describe sounds very odd in many ways and as TUPE is a complex area of employment law I strongly suspect you will need to get expert advice. Best ways are a) through trade union (is your husband a member of one?) or b) through legal advice insurance often as part of home insurance. CAB is possible but the chances of getting good advice are less IMHO. Or you may have to pay someone for advice but the initial consultation should tell you if you have a case or not.

I would start by doing some reading and googling. Start here www.direct.gov.uk/en/Employment/Employees/BusinessTransfersandtakeovers/index.htm

If the receiving org intends to make any changes they have to produce a statement of ‘measures’ . There has to be meaningful consultation with affected staff by both sender and receiving bodies - with TUs (if there is one or more recognised) or otherwise elected staff reps, although I understand that the receiving org normally does this through the sender org. However your company A (sender) certainly may not ‘wash its hands’ as you describe. That is a surefire way of finding themselves in an ET.

I think your husband needs to get advice and express concern in writing asap, ideally qoting the regs.

Evie74_2

Thank you so much for replying. I had a feeling it wouldn't be straightforward! I have done some research on the internet which has helped me to understand a bit, but I am still concerned that things aren't being done properly. My husband doesn't trust either Company A or Company B to do things by the book, so it looks as though we will need some legal advice.

Thank you for tip about home insurance covering legal fees. My husband isn't in a Trade Union (sadly) so hopefully our insurance will cover a consultation with a solicitor.

Evie xx

snowcat53

Find out if company A recognise any Trade Unions. If so there must be formal (and 'meaningful') consultation with them.

Note that if there is a possibility of reduindancy it is the existing employer that must consult. Once TUPE'd, employees are protected from redundancy as a direct result of the transfer, and if company B made people redundant this would almost certainly be classified as unfair dismissal with the penalties associated for them. In the longer term company B can claim an 'ETO' reason - eg downtrun in business - to make redundancies

Have you got the communications from Company A and B (that this is a TUPE transfer, re consultation etc) ) in writing? This iis important. If not write a letter demanding it. Put all communications in writing if possible rather than making phone calls. Make a note of all verbal discussions and phone calls. It is vital to be able to produce a clear timeline and evidence particularly if it ever comes to a legal case.

What size are these companies? Larger firms with proper HR /legal depts ought to know what they are doing (but sometimes even they don't in my experience). Small companies often don't or understand their obligations. Whatever size all will hope to get away with stuff if they can, hoping that no employee will be confident or informed enough to challenge them.

You need to check your insurance. You will only have legal cover if you have added on that option. They will take on the case if they think you have a >50% chance of success, but that may be too late to forestall the problems.

Further excellent info is in the Unite guide to TUPE (google 'tupe unite guide' -the pdf comes up ) .

Evie74_2

Thank you very much for the help.

Company A is an international corporation; Company B is a British plc, so both should probably know better, and are big enough to pay for legal advice. I don't know whether they recognise any particular TU, as the type of work doesn't really lend itself to an obvious TU group.

Company A wrote to my husband at the outset stating that his contract with them would terminate on 31 July, and that his employment would be transferred to Company B under the TUPE regulations. We have had no direct contact at all with Company B.

Because so many people at Company A are affected (about 50 I think) Company A told them to appoint some representatives to talk on behalf of everyone else at meetings (presumably to stop it becoming a free for all).

HR at Company A also had individual meetings with affected staff at which they simply asked if staff understood what TUPE meant, and asked them whether they would prefer:

1. Being made redundant by Company B;
2. Working 200 miles away (or at another UK location of Company B's choice;
3. Applying for another post at Company A (although there might not be any); or
4. Leaving Company A before 31 July of their own volition.

Staff were obliged to put these options in order of preference. My husband would have preferred not to answer but was told he had no choice. He therefore said that if pushed he would prefer to take redundancy or work for Company B at another location. He does not want to stay at Company A or resign of his own accord before the transfer takes place. HR at Company A have not given any further individual support.

There was then a meeting with the representatives, which was attended by an HR person from Company B, at which the reps were told that all affected staff were in consultation for redundancy from Company B. They were given details of statutory redundancy pay.

A copy of the slide show shown to the reps at that meeting was emailed to all affected staff several days later - which was the first my husband got to hear of it at all. The slide show sent by Company B is entitled "Company A Redundancies" and states that their termination of employment will happen on 1 August, i.e. the day after the TUPE transfer.

There has been no direct contact between my husband and Company B yet, but they have been told that Company B's HR will be meeting with individuals over the next couple of weeks.

It's very interesting to learn that Company B can't just make people redundant straight away without risking a claim - they are such a massive company I assume they think nobody will be brave enough to take them on.

I don't think we have the legal costs cover on our home insurance but I think it's clear we need specialist legal advice.

Once again, thank you so much for your advice - I am continually amazed by people's generosity and helpfulness on MSE.

Evie xx

jinty54

Hi,

Could you not add the family legal protection to your current policy as negotations are still ongoing. The cost in my case was just under £30.00 for the year and something I always tell people about. I have used it only once but won my case but my claim was different. We did not have to pay the contractor for a poor installation.

I have not read the full thread but ACAS, if they have not been mentioned, offer a fantastic service and are free.

Hope it works out well.

getmore4less

rule No 1 don't believe an employer when they say you have to do something


Company B withdraw contract TUPE applies.

Nothing A can do, consultation is statement of facts your job is now with Company B.

Company B consults on Transfer, relocate or redundant


There may be some details they have not done right

The basic thing this is a done deal there is little A can do if they can't keep the contract, they have no obligations to redeploy internaly.

A telling you you have to prioritise choices is I think them telling porkies.


I think B can start consultaion before the transfer and AIUI it starts the day the group reps were consulted.

Even if B can't start early it will just add 30days to the same outcome.

group reps are a requirement for the numbers involved.

It is the reps job to get on top and take legal advise if they need it.

If they are not upto the job then change them,

getmore4less

One other thing to look at is the redundancy packages that A have been giving out in the past, if you can show a case for more than statutory terms that may be worth a fight.

snowcat53

Pleased to help if i can, as have been through a TUPE myself, and had to pursue grievance and ET claim, but do bear in mind i am not a lawyer. There used to be a couple of employment lawyers contributing regularly in this forum but i suspect they got fed up of abuse from those who weren't told what they wanted to hear!

Yes ACAS are worth contacting for advice.

You say your husband was told his contract was to end on 31 July - was this a fixed term contract due then ? That may make a difference.

Important to remember you are not powerless in this, despite what it may seem like. Read up, speak up, get advice. ask awkward questions.

Evie74_2

Thank you everyone for the kind words and advice. You do feel so powerless so it's good to hear from people who have been through this and come out the other side.

My husband isn't/wasn't on a fixed term contract - 31st July is just the date that Company A have said they will cease to be the employer and the TUPE transfer will take place, with Company B taking over (and making everyone redundant) on 1 August.

I will see if we can add the legal insurance to our home cover; if we can do that for £30-odd it will be well worth it.

Thank you once again - I'll let you know what happens in the hope that it will be of help to anyone else in a similar situation.

Evie xx

snowcat53

I would certainly add the legal cover anyway for the future, and you can use the phoneline to get advice but if you needed full legal support to fight an ET claim they will use the date of the event or incident which led to the dispute, - likely to be when tupe notice came out - which was when you had no cover. However may be useful for later
Good luck

PS This - from the Unite guide linked above -sounds like your starting point
"TUPE states that employees who are dismissed either before or after the

transfer where the sole or main reason for the dismissal was:
- the transfer itself; or
- a reason connected with the transfer which is not an economic,
technical or organisational reason entailing changes in the workforce
(“an ETO reason”)

will be found to have been automatically unfairly dismissed."

I'd suggest writing to HR, given that the proposed redundancies appear to be very clearly due to the transfer itself. and state that you consider they are in breach of TUPE regs, and also make the other employees aware through the elected reps.