TUPE - Total Confusion!

NWOIHTS

Hi

I work for a company (A) who are contracted out by company (B) to do certain work. We are part of a an overseas team (who are employed by company and we are based here in UK.

We were notified recently that the work we do is being taken back in house (to company for "Financial" reasons. Now, we are liaising with Company A's (our employer) HR team about all the details of the transfer and as yet (15 days since notice of start of consultation) have had very little information at all and no direct email or documents from company B as to what is happening.

Our company gave us a hand out with details of the transfer - in other words the transfer is happening on X date and the consultation period is 30 days and the reason is for financial reason, and really no more.

We are a team of 4 and one of the team contacted ACAS but they said they couldn't confirm the actual legal standing as the transfer was to a company outside the UK. Company B has plenty of offices in UK and are not based in one specific country.

We are kind of confused where we stand, specifically:

Can they change our T&C's as they stated the transfer is for Financial Reasons? I spoke to an adviser from an employee assistance group and they sent a document with a good outline of TUPE. They said that any change to T&C would be valid if for financial reasons but only after the transfer took place. So in other words we won't be told our T&C such as location of work (which clearly states in the UK) won't be changed to after the transfer takes place.

This then raises the question where are we to be based the early days after the transfer because if they stick to the TUPE then they cannot tell us that our place of work (in T&C) is to be amended before the date of transfer?

From TUPE Doc:

[FONT=&quot]Economic, technical or organisational reason - ETO reason[/FONT]
[FONT=&quot]The exception to the protection against dismissal when a business is transferred is where an employer can show that a dismissal was caused by an economic, technical or organisational (ETO) reason [/FONT][FONT=&quot]entailing changes in the workforce[/FONT][FONT=&quot]. An employer, either a transferor or a transferee, can defend a claim for automatic unfair dismissal by claiming that the reason for the dismissal was not the transfer itself, but an ETO reason connected with it. The difference between the two is not always obvious and each case will be decided on its own arguments.[/FONT]
[FONT=&quot]72 There is no statutory definition of an ETO reason, but it is likely to include:-[/FONT]

• [FONT=&quot]a reason related to the profitability or market performance of the transferee’s business (an economic reason). Genuine redundancies which are nothing to do with the transfer can constitute an economic reason[/FONT]
• [FONT=&quot]a reason relating to the nature of the equipment or production processes which the transferee operates (a technical reason). A lack of appropriate skills in the workforce or inability to adapt to new methods of working may constitute a technical reason[/FONT]
• [FONT=&quot]a reason relating to the management or organisational structure of the transferee’s business (an organisational reason). A reduced combined workforce may give rise to an organisational reason.[/FONT]

This is what they have stated but can we ask for all details of the financial "reasons" why this took place?

Tbh I think this is their get out clause, they will wait till the transfer then tells us we have to transfer to overseas on lower wages and our place of work obviously changes and it is for financial reasons.

It also states in the hand out that the work was being transferred in house not the employees as well.

Here below I think that although the company were announcing cuts to the workforce (Mainly redundancies etc.) over a 5 year period there have been no significant changes to our worldwode teams, in fact they have an ongoing recruitment drive overseas.

[FONT=&quot]If an employee is claiming unfair dismissal and the employer is using an ETO reason as a defence, it will be useful for the employee to quote the [/FONT][FONT=&quot]Berriman case[/FONT][FONT=&quot] and try to show that the workforce has not substantially changed since the transfer. If the employee can show that there has been no significant change in the workforce since the transfer, then the employer’s case will fail. When looking at a change in the workforce, it will be necessary to look at both numbers of employees, and the functions they perform, both [/FONT][FONT=&quot]before and after the transfer[/FONT][FONT=&quot]. The employee needs to check whether the numbers employed are about the same and whether the employees are doing roughly the same tasks.[/FONT]

Any other thoughts on this whole saga?

Thanks

N