TUPE - Are They Allowed To Do This?

Bernard_Nurse

Hello there.

My wife has held a position with a local health trust for about 10 years.

The trust has recently decided to offload the department she works in - my wife is not very up how on transfers work etc so had just assumed that they were being 'taken over', but a member of the management of the company moving in has used the word 'outsourced' in a letter this week.

My wife is away from work this week but a colleague has been kind enough to let her know that most of her colleagues have had one to ones with the new management today and they have been given a contract to sign which includes a 10% pay cut and, for longer serving members of staff, a holiday entitlement cut of a third.

From what her colleague has said, they have muttered about having to demote people / make some of them redundant etc, if they don't sign.

This does not sound right to me and I would be extremely grateful if someone could confirm what I suspect, as in they are operating outside of the terms of TUPE.

Many thanks in advance for any advice you can give. :-)

jackyann

Your wife should have been given information about this previously (though if she is like most health care staff, she concentrated on patient care instead of bumf!)
These things vary enormously and I suggest she contacts her union.

getmore4less

How many people involved?

union what are they doing?

Get legal help ASAP this is going to be a stitch up if people start signing

Bernard_Nurse

Unfortunately my wife isn't in a union - the department she is in used to be run by the League of Friends until the trust took it over many years ago and I don't believe much effort was made to inform them about joining the union.

Having looked at the letter that made reference to the department being outsourced that my wife received last week, it is basically very wordy, even condescending, letter explaining how for suggestions on how they can 'provide the service in a sustainable manner'.

Verbally, one of the management team told some members of staff that they have £20k a week coming in and £30k a week going out, so to my mind they are trying to be the financial case to make the cuts.

It is a good job I don't work for them, as I'd be having a conversation along the lines of 'if the finances are that bad, maybe you should have thought twice before signing up to run the place'.

Anyway... if anyone can assist with this, I'd be grateful.

Bernard_Nurse

Hi Getmore4less, I believe there's about 20 people that work there.

As above, most aren't in a union because they've just gone with the flow when things changed in the past and weren't run very well at best - their manager was always off sick etc.

ALIBOBSY

From the sounds of it they are saying either take a pay cut or take redundancy?

My understanding is this would not be precluded under TUPE as long as any redundancy is based on the "transferred over" years.

I would imagine anyone taking the reduced rate and signing a new contract may find they are then treated as a "new entrant" with the outsourcing company and may lose any accrued years.

When she goes in and gets her meeting I would say she needs to say she is not prepared to sign until she gets a full written account of her options. She should ask for a calcultion of her redundancy based on her current terms and conditions as per TUPE and a copy of the new contract to go away and get legal advice on (up to her if she does see a solicitor-but may be worth a short chat just to work out her best option).

You may well find the new company are trying to get everybody to sign up and roll over so she needs to be polite but clear she wants exact details of whats on offer and what the situation is.

Good luck

Ali x

Bernard_Nurse

Hi Ali

Many thanks for responding so helpfully.

I think what you say is exactly right regarding the rolling over.

My wife is a perfect example of why some get away with this kind of thing as she is someone who has kept herself to herself, quietly got on with her job, and has never had reason to look into matters like this before.

Now she is confronted with them, she's obviously upset and is fearful that if she doesn't sign she will lose her job, despite my assurances she and her colleagues should have a little protection under TUPE.

A sign of the times maybe, but it doesn't make it any more right.

--
Steve x

getmore4less

My guess is they need enough to sign up before they willl take over the contract

These places work on the good will of the people that actualy work there

I though most of these types of things were charities!

Anyway

The first thing to do as above is OK consultation will need to be done and if 20 people that gets into group consultation which AIUI requires elected reps(even if there is no union), what are their redundancy options selection criteria etc.

Get a group meeting of all affected employees ASAP, someone will likely have cover on their home insurance(so make sure they all check) even if not it will be worth a group consutlation with an employent lawyer.


The chances are that if the place is loosing money somehting will have to change

What about an emplyee takover/buyout if it is loosing money they should pay you to take it on, probably paying te current option so find out what the deal is.

Bernard_Nurse

Ok... it may be under 20 employees - all I know is they're all being given one to ones this week and then have a staff meeting next week.

They've been told they need to sign by the 27th.

My wife has been on holiday for the last two weeks, which is why she's been getting most of this secondhand, but they did send the form asking for opinions on how money can be saved to her at home and asked her to return it asap... which would indicate they NEED rather than WANT her feedback to justify what they are trying to achieve.

The place is losing money (so they say) but I don't believe they've produced any figure work, and if they have, it's not on paper.

I'm not sure whether the trust would consider an employee takeover... but that sounds like something that would be better for those already working there, because aside from anything else, a co-operative is more likely to work in the interests of the employees?

I did think they must be paying the current lot looking to run the show - and despite it not being my job that's at risk, they've got right up my nose when I read pap like 'We will support you at this difficult time' when the reason it is difficult is down to them, the condescending <insert insult of choice>

snowcat53

sorry to hear of this situation

A couple of questions to clarify.
Does your wife have a formal employment contract with the NHS trust?
How long has she been there?

Do some reading on TUPE - try the Unite (the union) guide (google 'tupe unite guide') to determine if it seems to apply and understand the process.

If this is a TUPE transfer there has to be a formal process, including communication and meaningful consultation and there is protection of terms and conditions

It helps to be in a union but is not essential - you have the same legal rights whether you are or not, but will need to exercise them yourself. As a first step it may be necessary to write a formal protest to HR (ask if this is a TUPE transfer, and demand a reponse in writing within a couple of days). It may be also necessary to take out a grievance to show she has tried all appropriate legitimate means to resolve the dispute. She should certainly not sign anything at this point, whatever the pressure

Discussions about whether they can afford to run the service or their asking for opinions on what to do is utterly irrelevant to the legal position so dont get side tracked.

You need to act fast. Keep us posted.

Bernard_Nurse

Hi Snowcat53

I am going to meet one of my wifes colleagues first thing in the morning to get hold of a copy of the letter my wife will be presented with when she returns to work next week and they drag her in for her one to one.

No mention of redundancies (yet) - I think they are looking to stitch them all up without having to fund anything as 'generous' as that if they don't agree.

This is an excerpt from the email my wifes colleague sent her today and is obviously based upon what the new management team (they are in place already, but it doesn't appear that the transfer has gone through) has told them:

'We have till 27th August to hand in signed acceptance of changes, and they will start 1 Oct, so we have August and Sept wages still to come.

If changes not accepted they will think about getting rid of some Section Leaders, interviewing us all for competencies for the job, sacking people and making savings that way, or maybe not being able to keep the nursery going.'

Nice, huh - make the workers feel like they MUST sign for a big paycut and reduction in holiday allowance, plus lose their NHS pension etc, thanks to something not of their making.

Oh, and they've all apparently been told not to discuss it with anyone as it is 'confidential'.

They also took them all out for a meal etc, a week or so ago - trying to convince them how nice they are really etc and soften them up, I'm sure.

My wife does have a formal contract with the NHS Trust - I am looking for it now, but from memory, the nursery she works for was taken over by them back in 2006 and was previously run by the League of Friends at the hospital at which it is based.

Her total length of service at the site is just over 10 years. Most of those who work at the nursery are like my wife - long standing, loyal employees who are low paid.

I have found the Unite TUPE guide and will post on this thread again tomorrow once I've got hold of the letter concerned.

Many, many thanks for all the help - this is one of those things that you just look at and think '...really?', and it is great to get some assistance and sound advice. :-)

--
Steve