TUPE - Are They Allowed To Do This?

snowcat53

I hadnt seen that before - very useful - thanks Lyncroft.
It hasnt been implemented yet though.

Pricivius

Bernard_Nurse wrote: »

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

None

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?

It would be unusual but it's possible that the NHS may agree to take staff back.

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?

Depends what they are asked to sign - if it's a whole new contract, then they have lost all the old contractual rights. If it's a letter amending bits of the old contract, then only the bits mentioned will change and the rest will remain in place.

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 - she should retain continuity of employment.

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?

Not really - looking at it from the company's point of view, they have been asked what the options are and they have answered. Would everyone feel happier if they lied? Then they would be accused of being disingenuous or even dishonest. It's a no-win situation.

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?

Unlikely that the company would be able to answer definitively and they would not want to mislead as that could cause further issues down the line.

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

I'm afraid I don't see evidence of dishonour in your posts.

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?

No - there are clearly financial issues which ened solving one way or another. If they back off, the company could go under and the contract transfers back to the NHS who then re-tender to another company who would probably need to make similar changes if the place is uneconomical.


Many thanks.

Whilst you have my every sympathy that this is a horrible process for anyone to go down, unfortunately, it is a sign of the times and is not unusual at all. Your wife has transferred under TUPE and her contractual rights have been preserved. The company is now seeking her agreement to amend these and it may well have every right to do so - under TUPE as an ETO reason or aside from TUPE as a response to the financial circumstances.

If it is correct that the nursery is in financial difficulties, something has got to give. The company has therefore suggested that everyone takes a pay cut in the hope of saving everyone's jobs - this is a solution that many companies have used, including my previous employer. It is recommended as it keeps the workforce together and is (believe it or not) the least stressful of all the options. However, they do need the employees' agreement for this. If they don't get it, then the next stage is to find other ways of making the necessary cuts. They have asked for the workforce's suggestions...

If we accept that there is a financial situation here, I am not clear on what you expect them to do. It would be lovely for everything to stay the same and for everyone's previous contracts to be upheld - but they are telling you that this is simply not economically viable. So... what's your proposal? Maybe everyone takes a paycut for a year and then it's reviewed in the hope that the situation will have improved? Or can everyone agree to take 10 days unpaid holiday this year as that would help the finances (again, something I did with a previous employer)? Taking some suggestions to the table may allow your wife to take some control of the situation and feel a lot less stressed by it...

Whilst I can totally appreciate that this is not good news and feels very unjust, a more proactive approach to solving the problems faced by your wife's employer may make more sense in the long run.

DVardysShadow

Bernard_Nurse wrote: »

.... 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:

Please edit your post and remove that quote ASAP. The employer can search email servers for the text you have quoted with the consequence that you will have stitched her colleague up

bham_guy

What appears to be happening here is that the transferor is smoothing the deal for the transferee (new company). Under a TUPE transfer, an employee transfers under their existing terms and conditions, which can include pension rights. If in this case, the employees do not agree to the terms and conditions, and are made redundant - the chances are that they would succeed in a constructive dismissal case. Under TUPE, if an employee does not agree to the transfer, then it is deemed to be a resignation and not a redundancy. However, this is a different matter as the employer is attempting to change the terms and conditions with a view to smoothing out the outsourcing deal. Also, the Industrial Tribunal may take the view that the former employer has breached the TUPE regulations by manufacturing the TUPE liability information or in fact sweetening the deal for the new contractor by changing the employees terms and conditions. The employer is running a risk which exposes them to legal challenge.

CFC

Pricivius, spot on posting.

snowcat53

Whilst you have my every sympathy that this is a horrible process for anyone to go down, unfortunately, it is a sign of the times and is not unusual at all. Your wife has transferred under TUPE and her contractual rights have been preserved. The company is now seeking her agreement to amend these and it may well have every right to do so - under TUPE as an ETO reason or aside from TUPE as a response to the financial circumstances.

I disagree with Pricivius here.

On the contrary this looks on the face of it a clear breach of TUPE. The transferee was aware of the financial position beforehand. The information given to employees during consultation was that no measures were anticipated, and then this happens immediately after the transfer. Althought there is no formal minimum period after TUPE for changing roles and t&cs this is brazen.

I still recommned the OP needs proper legal advice quickly. However they have not been back here for a while.

Queen_B_3

I thought once you TUPe'd over then the new company could get you to sign up to new terms and conditions. I only think this because I currently work for a PCT which is being abolished next year, we've been told that if we are lucky enough to get a job with the new commerical company then agenda for change T&C will apply because they are still under the control of the NHS. Once that ceases (latest 2015/6) then they have the right to get us to sign to new terms and conditions which will most definetly be less favourable.

Or maybe not?

I feel sorry for the OP's wife, I hate what the NHS is being turned into

Pricivius

The thing is, any employer can ask any employee at any time to change ts and cs. Providing an employee agrees following consultation, then job done. The company in this instance have done just that - if the employees refuse, the employer hasn't threatened dismissal but has suggested that it may have to look at other money-saving measures.

In the event that the employees refuse and employer dismisses, then it's worth looking at the implications of TUPE... but this has not happened yet. Simply consulting with employees is not a breach of anything.

snowcat53

They can offer you new terms and conditions (and these might even be better) but cannot impose them.
To quote one of the guides

The general position is that the terms and conditions of the transferred
employees are protected following the transfer and the new employer is
limited as to what changes it can make. Specifically, the new employer cannot
make changes to transferred employees’ contracts where the sole or main
reason for so doing is:
- the transfer itself; or
- a reason connected with the transfer which is not an economic, technical or
organisational reason entailing changes in the workforce.

Similarly, the old employer cannot make variations in anticipation of the
transfer for either of these reasons. Any variations made for either of these
reasons will be void.

However, where the sole or main reason for the variation is a reason
unconnected with the transfer, such as a sudden downturn or upturn in work
following the transfer (resulting in a reduction or increase in working hours, for example), the variations will not be prevented by the Regulations.

Similarly,where there is an economic, technical or organisational reason entailing changes in the workforce for making the changes, such as a requirement for certain managerial employees to move to non-managerial roles, then such variations to people’s contracts will probably not be prevented by the Regulations. Nevertheless it should be remembered that to make such variations, the employer will still need to obtain the employees’ consent in the usual way. The employer cannot simply impose the variations.
----
IMHO there seem to be quite a few NHS employers trying to slide round the rules at present , and hoping they can get away with it.

getmore4less

I am inclined to agree with the points being made, this is clearly a change connected with the transfer.

They should be putting redundancies up as the default we need fewer people to deliver the service, not we need cuts in costs to deliver the service with the same people.