TUPE - Are They Allowed To Do This?

getmore4less

good points.

Actaully looks like they have commited to a 5 year contract to supply services and the trust should have put a condition on the contract that existing T&C are maintained for the full term of this contract.

You need to get every one together and fight this as a group, I suspect they have done a deal that breaks even this is an attempt to make money.

Might also be worth looking at what happened when the other two contracts were done , talk to the staff and find out what happened if thye were stitched up what they do to try and fight.

I suspect if this T&C' change does not come off they will try moving people around to make the jobs less atractive to try and get people to leave.

Sound like a story a local paper might like to run

snowcat53

Yes, very helpful to meet as a group and discuss . Divide and rule is often the employers tactic.

Do you have legal advice/helpline in your home insurance? If not find out if anyone else affected has. This is an excellent way to get advice, and support in fighting a case to ET if necessary (and if the insurer deems it has a better than 50/50 chance of success)

Good point re publicity. Also try your MP.

snowcat53

Bernard_Nurse wrote: »

'As you may know, the primary reason that the Trust outsourced nursery functions was that the Nursery had been making considerable operational losses for several years, despite having been heavily subsidised by the Trust.
/QUOTE]
In other words they (new company) were perfectly aware of the economic position beforehand.

The more I look at this, the more it looks like a clear breach of TUPE regulations. Good luck

Bernard_Nurse

Thank you all for the advice given so far - my wifes colleagues are really grateful.

I have now been told by one of them that when she questioned what would happen if she didn't sign, that redundancy wouldn't be offered but they'd be offered something else within the NHS?

Given this was advice given by the new employer after the date of transfer (1st August 2012) is this right - it doesn't sound right to me?

My wife has passed a letter dated 25th July 2012 to me which the Trust HR left for her at the Nursery confirming she would be transferred to the new employer as of 1st August 2012 under TUPE and which she didn't receive until today when she returned to work after a break.

It specifically states the following:

'The transfer of your contractual agreements with the Trust is effective on 1st August 2012.'

'The new employer is XXXXXX and you will transfer on the same terms and conditions as you have with the Trust in accordance with your rights under the Transfer of Undertakings (Protection of Employment) Regulations 2006.

You will automatically be transferred to XXXXXX payroll.'

(As mentioned before, it appears they will only be transferred to the new employers payroll as of 1st October 2012)

'I understand from XXXXXX that they intend to make some changes to the services provided but have no firm proposals at the moment.

'Any period of continous employment you may have with the Trust will count as continuous employment with XXXXXX.'

I'm trying to arm her and her colleagues with the key facts they need to know before they go any further, so would be grateful if I could have some clear, concise answers to the following a lay person could throw in the face of the new employer.


1. What obligations (if any) does the previous employer now have to the staff if agreement cannot be reached with the new employer?


2. As above, the new employer has suggested that staff who refused to sign may be reassigned within the NHS and not necessarily in equivalent roles; cleaning / catering has been mentioned, apparently.

Does this carry any water at all given they are a limited company unconnected with the Trust?


3.Assuming staff did sign, does this constitute a new contract of employment and remove all the contractual rights they have under their current contracts, such as redundancy terms / sick pay unless they are specifically carried over and mention is made of them?

Also, the letter my wife has just received from the old employer states that their period of continuous employment with them will count as continuous employment with the new employer.

Does this apply if they sign a new contract?

I understand this is not an issue TUPE is concerned with when the new terms are better than the old, but that it is most definitely a consideration where the new terms are worse than the old.


4. Someone else within the department has said to my wife today that one of the new employers has verbally stated that if they don't sign, a number of things will happen, including a review of all their competencies and people being demoted etc.

Is this something which can be construed as undue pressure?


5. Are the staff entitled to request a written summary of what actions will follow if they do not sign up to the new contract?

Given the less than honourable evidence so far, I don't believe the new employer will be willing to do this.


6. If the employer decides to back off for now, is there a limit to how many times they can attempt to put the staff through this?

I think that will do for now - although my wife is continuing to crave the quiet life, some of her colleagues appear to be up for fighting this to the end but only if they have a clear relatively safe path to follow... which to my mind, is something the new employers have deliberately sought to obscure.

Many thanks.

Bernard_Nurse

One more thing, possibly crucial:

The letter my wife got today from the Trust is entitled 'Transfer of In-house Nursery service from XXXXXX Trust to XXXXXX Ltd'.

snowcat53

Sorry but those questions require expert answers which i can't give. I'm pretty sure the old employer no longer has any responsibility now the transfer has happened although they can still be held liable to an ET for breaches of TUPE (claims are often against both parties to cover all options and buck-passing). I can only reiterate that you need to get proper legal advice quickly if you want to fight this. Any ET claim for breach of TUPE has to be submitted within 3 months less 1 day of the transfer in most circumstances.

Have you looked at this yet?
Did you/she ask her colleagues re legal insurance cover?

BTW I do wonder about why they didn't send the letter to her home address - and whether leaving the letter at the nursery for her to pick up is adequate in terms of communication

LittleVoice

Bernard_Nurse wrote: »

'Any period of continous employment you may have with the Trust will count as continuous employment with XXXXXX.'

[snip]

Also, the letter my wife has just received from the old employer states that their period of continuous employment with them will count as continuous employment with the new employer.

Does this apply if they sign a new contract?

Yes - unless there is actually a break, employment is continuous. If she has a copy of the proposed new T&C it should include a statement to that effect near the beginning. That is, it should say service is continuous from a given date (the date that employment began with the NHS Trust).

Do the employees who have signed got a copy of the new T&Cs?

bobbob74

I have been TUPE'D three times now, twice within Leeds City Council and just four weeks ago to a private firm. The new employer must honour your terms and conditions from your old employer, pension, sickness,working hours and wage etc. You should be under no financial detriment, until they give 90 days notice!!!!

LittleVoice

bobbob74 wrote: »

I have been TUPE'D three times now, twice within Leeds City Council and just four weeks ago to a private firm. The new employer must honour your terms and conditions from your old employer, pension, sickness,working hours and wage etc. You should be under no financial detriment, until they give 90 days notice!!!!

I doubt that a private firm will be offering you the same pension though it should be roughly equivalent - and there can be a lot of debate about what that can entail.

Lyncroft

LittleVoice wrote: »

I doubt that a private firm will be offering you the same pension though it should be roughly equivalent - and there can be a lot of debate about what that can entail.

I think that's correct for now but I read recently that if you're tuped over from the public sector you'll have the right to stay in your pension scheme. As ever I'm sure the devil will be in the detail but it looks positive.

http://www.capsticks.com/shownews.php?article=144