TUPE who goes & the process

yorkshireman12

Ok my employer has lost a big contract and they suggest 8 people will be TUPEd over to the new company. There are 30 employees currently, of the remaining 22 employees they will be absorbed into the existing ( current ) company at other locations and possibly a small number remaining at the original site ( these two choices are the preferred option for all the staff ). All employees work on various contracts including the lost contract. However the allocation of work is random, one week your working with the lost contract and the next week on another contract. The employer has gone back 3 months and counted the number of times each employee has actually worked at the lost contract and those 8 members of staff with the highest count will transfer. No-one wants to transfer to the new employer, so does this put the 8 people at a disadvantage who have been selected because they had no choice in the allocated work / where they would be. Also someone who has been on sick or alike has a lower number so again is advantaged. I understand the transfer but believe the process of how the 8 which will transfer is unfair...? any comments please ?

p00hsticks

yorkshireman12 wrote: »

I understand the transfer but believe the process of how the 8 which will transfer is unfair...? any comments please ?

I don't know the legal position, but from a common sense point of view having the 8 who've worked most on the contract move over seems sensible and logical - can you think of a better way of deciding ?

sangie595

If you are looking for a definitive statement that this isn't the right way of deciding this, you won't get that. If you think you have a better method in mind, that is the point of the consultations - you can tell them your idea. But the process you describe is as fair as any, so you can't make then change it, and if they don't, the process itself wouldn't give you any legal recourse.

mariefab

All employees work on various contracts including the lost contract. However the allocation of work is random, one week your working with the lost contract and the next week on another contract. The employer has gone back 3 months and counted the number of times each employee has actually worked at the lost contract and those 8 members of staff with the highest count will transfer.

In the circumstances described above no-one should transfer.
TUPE isn't supposed to be used to off-load surplus staff.

If the 8 employees had worked exclusively on the lost contract TUPE would have applied.
See 3(a)(i) below:
http://www.legislation.gov.uk/uksi/2006/246/regulation/3/made

sangie595

mariefab wrote: »

All employees work on various contracts including the lost contract. However the allocation of work is random, one week your working with the lost contract and the next week on another contract. The employer has gone back 3 months and counted the number of times each employee has actually worked at the lost contract and those 8 members of staff with the highest count will transfer.

In the circumstances described above no-one should transfer.
TUPE isn't supposed to be used to off-load surplus staff.

If the 8 employees had worked exclusively on the lost contract TUPE would have applied.
See 3(a)(i) below:
http://www.legislation.gov.uk/uksi/2006/246/regulation/3/made

However the legislation says that the employees principle purpose should be to carry out this work, not their exclusive purpose. If the eight selected are the ones that do most of their work on the contract that would mean the contract is their principle purpose.

That said, what the workers want isn't viable. They all want to stay with the existing employer, on the same site or elsewhere. As you say, if some don't transfer, they will be "surplus" workers. And there is only one option when an employer has too many workers for the work available.

sangie595

yorkshireman12 wrote: »

Is there any legal reason why ( if indeed Tupe does apply ) that the 8 to transfer cannot be selected on seniority within the company ? One of the eight "selected" has 44 years service as opposed to some members of the company who have 12 months service and 14 months service and are not selected to move over.


To add the company has said there will be no compulsory redundancies with any staff in any situation regardless of what happens.

Yes - the selection would be based on something that has nothing at all to do with the work; and is probably indirect age discrimination which is actionable in law.


Saying that there will be no compulsory redundancies and that actually happening are not the same thing. If an employer must reduce the workforce (which is implied if they have lost a major contract) they will have to reduce costs or profits. Unless they have a lot of money they can't sustain a workforce for whom there is not enough work for long. And the problem with voluntary redundancy is that it is often the people you least want to lose who apply for it.


Do not assume that anything is sacrosanct, especially peoples jobs. No matter how good an employer they may be, they have to do what is in the best long term interests of the company - otherwise nobody has a job. Better to lose some jobs than the whole company and all the jobs.