Tupe Consultation

DaveyJacks

Hi

Ive finally been contacted by new company that i will be transferring to at beginning of April (3 weeks away).

Ive been asked to meet next week which is fine. They say there is a position , however arent clear if this is the same as my current position. They previously contacted me to ask if i would step down a grade, but I wasnt prepared to do that.

My questions that I cant seem to get answers for are thus:

1) Can they offer me a post some 50 miles further away, does this count as the same job?

2) I have current formalised flex working agreement due to childcare. This is effectively working from 9.30 not 9am so i can drop off at school. Can they ignore this and demand a 9am start?

3) Can they offer me a lower rate of pay in any shape or form and make claims its legitemate?

4) The letter i recieved from them today states they have 'a position available' but this may change with 'future restructuring'. Does this mean they can transfer me to them, then drop my pay / role 6 months down the line and claim it as a restructure??

Thanks all. Terribly worried about this now and any guidance would be most appreciated.

Regards

Dave

sangie595

1) Possibly. 50 miles is just the limit to the tribunal accepted general travel to work area (or 90 minutes each way). But without a fuller explanation then it is impossible to say. With childcare, it may be mitigated to a shorter distance (although only a tribunal can decide that - you could only get general guidance from advice).

2) 3) and 4) TUPE protects your conditions ONLY at the point of transfer. Immediately after that the employer can make changes, but they must show that these changes are necessary under economic. technical or organisational requirements. That is so broad that only a stupid employer couldn't find an explanation to fit. So before the transfer they can offer anything they want and you don't have to take it. After the transfer all bets are off. And I think you have the writing on the wall. At best you may be made redundant, but don't depend on that - these days lower pay does not necessarily make a job unsuitable and without knowing exactly what they propose it's impossible to guess.

You need to be aware that if you accept a new position at the point of TUPE or at any time after TUPE your protections (such as they are - which isn't much) immediately disappear. Your protections are attached to the job you now have transferring with its current terms - and to nothing else.

DaveyJacks

Thanks for the helpful information.

I was under the impression that if i dont accept, i cant be made redundant because the job is effectively there? Is this not the case? Current employers did write to me and say i would be offered redundancy if i dont accept new role. However, I expect they will reneg on this if i dont accept the transfer as (legally??) they dont have to offer me anything.

sangie595

If it is a different job then your job isn't there! So yes, you can be made redundant.

Whether they have to offer you anything depends on the terms of the TUPE. They have to TUPE your existing job - not TUPE you to another job. For TUPE, the discussion is about the job, not about you. It's all about the job. So if the job is not being transferred, then yes, you may well be redundant. You aren't refusing to transfer, you have no job to transfer to.

monkeydrum

Sorry to hijack this thread, but it is a relevant question...

What if you are offered the exact same job during the TUPE? For example, if your company is basically just outsourcing your role and you are transferred to the new employer with all of your T&C's carried over? Could the new employer, for example, announce a restructure and effectively force you to take a new role with their (lesser) T&C's? In other words, are the T&C's not worth the paper they're written on after the transfer? Surely they have to honor your enhanced redundancy, years of service, etc if you have it in writing? Don't they??

sangie595

Only sort of. The answer to all of this (except years of service - they are always protected) is in what I said before. The terms are protected at the point of transfer. Technically, in law, they are then protected for ever. But that never really works out, because there are reasons why they can change them - the ETO reasons I outlined above. And it is possible to change things for those reasons very soon after TUPE, if they can establish the case. It would then be up to you to be able to make a legal argument that their case isn't correct - and that can only very rarely be done. Enhanced redundancy, unless it conforms to their own policy, is almost always one that goes at some point in time.

I'm afraid that making changes is easy if the employer applies themselves to it, and there is often very little that can be done to stop them. A fair few employers will wait a while - it depends on how motivated they are to make changes, because in any case, it's considered something of an "unwritten law" that at later points in time it is unrealistic to expect an employer to continue to honour historical terms. In other words, tribunals become less and less rigorous as time goes by about the protections, because the arguments for them get stronger. But on a hypothetical basis (and it does sometimes happen) changes can be made almost immediately.

DaveyJacks

Hi all
Just an update on this. I had my meeting this morning.

The job in the TUPE is very similar to the one i am doing now. In the consultation meeting, i asked if my current conditions were protected and for how long. They replied that the current terms will be honoured (including flexible working agreement) but said this would be under review if they restructured (i guess this was to be expected).They said they would like for me to do some weekend work, however I said i would prefer not to and work during the week. The 'base' for the post is only about 10 miles further than my current location.

For all intents and purposes, it appears my job is there. As i said before the new company has somewhat of a poor reputation in the sector, and the area manager i met in consultation (prospective line manager) has a similar status,, and they mentioned restructuring several times unprompted and gave no more information when i asked, stating it was 'theoretical'.

I am dubious about the post, but was told in no uncertain terms i would be resigning if i did not take it. I suspect this may be correct, but not sure.

My current employers had offered me a statutory redundancy if I dont take the post a few weeks back. As im winding down my career anyway, I think i would like to take this redundancy offer but am sure they will retract this if I say I dont want the job.

If I make the decision not to TUPE based on the offer of redundancy (whether it applies or not), can my current employers then change their mind and say im entitled to nothing?

Thanks

Dave

sangie595

The answer is yes, they can refuse redundancy. You have a suitable alternative job (which was not clearly the case when you previously posted), so you would be intentionally terminating your employment. There is nothing to stop them making you redundant now though - it shouldn't make any difference to them if they intend to honour the offer. But equally, the offer may have been based on the uncertainty about a suitable post-TUPE position, and that would have been the right thing to do then. So don't wait until after you turn down the post - ask them to make you redundant first, and if they say no you still have a job to go to. It is possible (but without details nobody could say definitely) that the outcome of any theoretical restructure might be redundancy anyway. But that is a gamble.

DaveyJacks

Thanks for your time in reading this and for your advice. I need to give this some thought.

Thanks

Dave

getmore4less

They are going to restructure take that as a given.

what is unclear is where you will fit in or if you will even want to fit in.

If your current employer knows you are end of life career wise good chance the new one does and if they wanted weekend working that will probably come back on the table sooner than you want.

I suspect they woin' be too keen on investing in you if they know you are on the way out whatever happens.