Another TUPE issue

downshifted

My friend is a manager in a school which is being taken over by another school. She was not formally considered for another similar role - the school that is taking over already has someone. She was only offered lesser positions. She would be ok to go with her redundancy money, but they want her to finish off some work for the old school, which means working her notice when others are having gardening leave - I think they are being pretty trusting as it is accountancy work they want her to do! She has been told the following:

To confirm this will mean that "friend" will transfer to the new school as of the 1st September and will remain an employee of the new school during her notice, but will work from "a different place". You mentioned in your telephone conversation with me that "friend" had not received confirmation that this had been agreed, so hopefully this will reassure her of the position from 1st September.

That sounds to me as though she is being transferred under TUPE - can they transfer her just while she is working her notice? Or will she have to be made redundant by her new employer when she has finished the work, and be given notice again? What if the work takes more time than the notice period? They have said if it takes less she can go on gardening leave.

Any advice welcome - many thanks

getmore4less

Worth checking the full details and getting expert opinion

As they have been put on notice I think they may be able to refuse the TUPE transfer and still retain their redundancy(thats the bit that needs checking)
eg.
https://www.gov.uk/transfers-takeovers/transfers-of-employment-contracts

BobQ

Is your friend a member of a trade union. If so this is her first port of call. A good source of information is https://www.acas.org.uk and their helpline.

The employer has a duty to consult affected staff. Has it done so? Consult is not the same as tell.

Does the letter make explicit that the transfer is under TUPE?

I agree this seems to be a transfer under TUPE but with the intention of making her redundant. Has she received a redundancy notice? Has she been told when she will get one.

The way in which this is being done seems crass to me. If you transfer someone under TUPE and then make them redundant because of the transfer it is automatically illegal. It would appear that they are in danger of doing this.

It would be simpler to make her redundant from the existing employer, even if the date of redundancy is after the TUPE date. So I am wondering if that is what they meant to say in the letter?

An employer can make someone redundant and require them to serve their notice (although there are rules about what happens if the person finds another job). There is no right to gardening leave. They can also cancel the notice if they have alternative work at the same level.

If they have served a redundancy notice which they are now varying they must withdraw the notice if they have found her work (including if they transfer her). The new employer is then obliged to issue a redundancy notice if there is no work. But as I say if they know they are going to do this on Day 1 they are on difficult grounds.

downshifted

I will pass on your questions and comments. Thank you

getmore4less

Not that familiar with school "ownership" structure is this realy a TUPE or just a change of ownership, if the legal employer has not changed that would change things.

downshifted

They are two differently owned Academies so Tupe does apply

getmore4less

TUPE may not apply if the academy is 100% independent and not part of another company.

BobQ

getmore4less wrote: »

TUPE may not apply if the academy is 100% independent and not part of another company.

TUPE applies to the transfer of a business or a service Legally, an academy is a Trust. As I understand what the OP has said one Academy is taking over part of the work of another Academy and it sounds like a service is being transferred, so that would be covered by TUPE.

Probably need more information to understand exactly, but I am not sure what point you are making above.

See:
http://www.acas.org.uk/media/pdf/d/r/Handling-TUPE-Transfers-The-Acas-Guide.pdfo separate

downshifted

She has been told formally that TUPE applies - my question relates to whether they are applying it correctly in her case - she is being treated differently from others who are all on garden leave. Frankly if it were me they would have a hard time untangling the accounts when I'd finished!

getmore4less

BobQ wrote: »

TUPE applies to the transfer of a business or a service Legally, an academy is a Trust. As I understand what the OP has said one Academy is taking over part of the work of another Academy and it sounds like a service is being transferred, so that would be covered by TUPE.

Probably need more information to understand exactly, but I am not sure what point you are making above.

See:
http://www.acas.org.uk/media/pdf/d/r/Handling-TUPE-Transfers-The-Acas-Guide.pdfo separate

If a standalone company is bought by another company but still exists as an entity TUPE does not apply as there is no change of employer.

Same may apply when the where the employer does not change eg local authority employs and pays people to work in the school.