automatic unfair dismissal under TUPE

mxtj

I work as single IT person of a small company of 30 staff and a bigger company has acquired our business side and I am the only one who left behind. I been told I will be redundant on may 2016, after 3 months, and offered me 1 month salary as a redundancy pay. I have premium insurance for whole family as benefit and 8% of salary as pension and I am working for them for more than 3 years.
last week HR told me i have been made redundant under TUPE which makes my redundancy as automatically unfair dismissal and they are supposed to let me know that. company is selling for a profit and I am the only one leaving behind, new company a have strong IT team and they are not taking me in.

Do I get anything more than statutory redundancy payment as i am losing my benefits and pension, etc... ?

elsien

What are the redundancy terms in your contract - some companies pay the statutory minimum, others are more generous. You need to check what yours says.
If it's the minimum, there's a calculator you can use to work out what you should get. The other benefits are not relevant for redundancy purposes.

https://www.gov.uk/calculate-your-redundancy-pay

If you are the only one being made redundant then I don't think there's the need for a consultation period. What makes you think it might be unfair dismissal? - just being a TUPE situation does not make it unfair. They already have a large IT dept which doesn't need another person.
https://www.gov.uk/redundant-your-rights

mxtj

according to TUPE
"If an employee is dismissed either before or after a transfer and the sole or principal reason for the dismissal is the transfer, it will be automatically unfair."
unless there is Economic, technical or organisational (ETO) reasons . but An ETO reason cannot be used just to reduce labour costs or harmonise
terms and conditions with existing employees.

elsien

From Unison

Can I be made redundancy because of the Transfer?
Yes you can be made redundant and new changes to TUPE law have made it possible for you to be made redundant before the handover, i.e. the new organisation can decide it doesn’t need all of the staff from the existing organisation and redundancy consultation will then take place with the existing organisation. For this not to be unfair there needs to be “an economic, technical or organisation reason entailing changes in the workforce”

Are you in a union or do you have legal cover with any of your household insurances which might help you get more advice?

mxtj

elsien, thannks for your reply .
"For this not to be unfair there needs to be “an economic, technical or organisation reason entailing changes in the workforce”" it is called ETO (economic, technical or organisation reason) that i mentioned above. My redundancy is not based ETO reasons above and the company acknowledge that already. also no, I am not in any union . may be i should see an employment lawyer ?

jobbingmusician

Of course your redundancy is on an ETO reason - the new employer has no need of you, so will have a business case (an economic reason) for not employing you. Sorry, but it is easy peasy for any employer to knock together a case which covers ETO. It is just possible (but very unlikely) that HR have shot your employer in the foot in the wording of your redundancy notification, but I wouldn't hold your breath. If you think your notification is very clear that they have not got an ETO, then yes, good idea to see an employment lawyer.

Think of it the other way round. What are your arguments for maintaining that TUPE should apply? If the employer wants NOT to TUPE someone, all they have to do is to ensure that the new JD is very different from the old one.

I assume that you are less than 41 years of age? If so, their offer of a month's salary is already more than the statutory minimum redundancy payment.

Sorry for the bad news, but you need to understand that you are not entitled to anything more than statutory redundancy unless the employer has actually screwed up. It seems to me that the law is, horribly, all on the employer's side when it comes to TUPE........

getmore4less

WHat have the new company actually bought?

it could be they have not bought the full compnay and you are left as port of the old company(not being in te scope of TUPE) which is closing so you are redundant.

If you fall in the scope of TUPE then you probably should transfer and be made redunant as part of the integration using a selection process if there is no need for and expanded(by 1) IT team.

sangie595

I am sure that I must have misread the OP - but the company's HR department actually told the OP that they intend to unfairly dismiss them because they must tell them? Wow. That has got to be the most incompetent HR department that I have ever come across. Did nobody tell them that their job is to protect the employer from a legal case? If they know that something unlawful is being done their job is to stop it from happening and protect the employer!

If the role is in scope for TUPE it is ever so easy to transfer and leave the new employer with the problem. If it isn't, then neither employer has a problem. Why on earth would they be actually setting about doing something that they appear to have openly admitted is unlawful? It doesn't make any sense.

getmore4less

I think the old/current company might be trying to deflect the problem back to the new company.

The OP probably should assume both companies are in scope and make any claim against both of them if it does not get resolved.

Bollotom

Seek union advice. If not in a union give the RMT a ring. They are experts on TUPE as they fought long and hard when Tubelines took over parts of TfL. You don't have to be a member either. Have a read of the doc below


https://www.rmt.org.uk/news/publications/tupe/

mxtj

Thank you for all valid points. there are some pints i like to make it more clear.
1) new company is a billion dollar company (one of the best in this feild) with more than 2000 staff across the world.
2) HR manager is my boss who is also chief Operating Officer.
3)Yes, he said I have an unfair dismissal under TUPE (i think it comes from company lawyer) that is how i came to know the word 2P (TUPE)