TUPE Advice

GeckoTatts

My partner is being TUPE'd from 1 company to another. He has worked continuously on a 6 on 2 off rota for 8yrs with the original company. His contract when he joined the company stated 4 on 4 off basis, and his written contract has never been updated to his actual working hours.

Now he faces being TUPE'd accross to new company but only on his original contract of 4 on 4 off.

How can he address this issue? Should it be with new company or old? (The transfer happens at the end of January 2014).

Also, he had heard (gossip) that his current employer has not disclosed his correct hourly rate to the new employer, does he have a right to ask current employer for details of what they have given to new employer about him? If so, how should he go about this, and also, if there is a discrepancy, how can he get it rectified before the TUPE at the end of the month?

I would be grateful for any advice given please. Thanks.

hambo04

Tupe is of his terms and conditions, but I can't comment if that should be his original ones. However, if he has been working for so long on current hours and arrangements then I would imagine it should be moved across and he will probably need to get his HR to put his current hours etc in writing preferably with him getting a copy.

AcidHouse

I think at TUPE stage they can only transfer him to the new company on a like-for-like contract, unless different hours to what it states in his current contract have been communicated and agreed with him in advance of the transfer date.
I think for the sake of a sale, everything continues as-is, until new management start making changes. So for example, whatever hours he is working now may well continue as normal, despite what it says in his actual contract in relation to hours.

Is there someone there helping the company work through the transfer? He should speak to that person to clarify his working hours that are being communicated to the new buyer - what's on the contract against what he actually works.

Kei

Hello there,

TUPE means that the employees terms and conditions are protected on transfer, basically on the 1st day of transfer everything should stay exactly the same as it is currently, the only change being the name of the company who he is employed by. This is unless the company have written and explained any 'measures' which will apply from the date of transfer, but these should only be practical things like pay frequency (dependant on how the new company's payroll works), holiday year (eg April to March changing to Jan to Dec), that the new company employee handbook in relation to policy and procedure may apply (dependant on what it refers to in old contract).

Pay should stay exactly the same. The hours he is currently working regardless of what the original contract states, should stay exactly the same. If the new company need to change any of this they have to consult with him after the transfer.

In addition he should be fully consulted with by both companies in the days leading up to the transfer. His old company have the responsibility of passing correct employee liability information no less than 14 days before the transfer date. The new company should be meeting with him on a 121 basis to go through the info and check it is correct. Ensure that he has a consultation before the transfer date with his new employer to confirm all the details. To prepare for this meeting it would be useful to obtain copies of payslips and work rotas, just in case they are required to confirm pay rate and shift patterns.

BobQ

Kei's advice is correct.

One other point is that the requirement to disclose current terms and conditions to the new employer is a legal requirement so disclosing the wrong information or not disclosing the information leaves the transferring employer liable to be sued by the receiving employer.
http://www.acas.org.uk/index.aspx?articleid=1655