TUPE or not TUPE, that is the question

kdubbett

OK, my company (worked here 8 years) got bought by a much larger company in March 2016. We've not had anything in writing at all but were verbally advised at some point that we would TUPE over to the new company on 01 August 2016. 01 August came and we haven't been told who we work for (although new company is now paying salaries). The new co. is making our jobs increasingly difficult by demanding that we work "their" way but we've had little guidance and although we're trying to do the right thing, it's not easy. Aren't we supposed to have had some sort of consultation? I note that TUPE should mean our old T&Cs but how does this affect day-to-day work? We've not had any new contracts or new company handbooks or anything like that and really don't know who to ask. There have been countless HR problems and we're all getting very stressed with the situation....

steampowered

Most acquisitions are done through the larger company buying the shares in the smaller company from the existing shareholders. In this situation TUPE would not apply, as the identity of your employer would stay the same.

TUPE would only apply if your employment is moving from one company to another.

kdubbett

Thanks steampowered.

We are now working for the larger company which bought us apparently (e.g. all letterheads/emails changed) but we've not been told anything really apart from that we are going to be TUPEd. Haven't either the old company or the new company got a duty to tell us what's going on in writing?

sangie595

kdubbett wrote: »

OK, my company (worked here 8 years) got bought by a much larger company in March 2016. We've not had anything in writing at all but were verbally advised at some point that we would TUPE over to the new company on 01 August 2016. 01 August came and we haven't been told who we work for (although new company is now paying salaries). The new co. is making our jobs increasingly difficult by demanding that we work "their" way but we've had little guidance and although we're trying to do the right thing, it's not easy. Aren't we supposed to have had some sort of consultation? I note that TUPE should mean our old T&Cs but how does this affect day-to-day work? We've not had any new contracts or new company handbooks or anything like that and really don't know who to ask. There have been countless HR problems and we're all getting very stressed with the situation....

Technically, yes, there should have been consultations. Assuming there is no recognised union, in which case they would have conducted consultations. But you were told a date, and the new company are paying wages, so I would assume the TUPE has occurred.

In which case, you need to work their way - they are paying you to do so. If that means you don't know what is expected, then you need to ask your managers, and it needs to escalate until they find someone with the answer. That is what management is for!

Your terms and conditions are protected at the point of transfer. After that, given the right reasons from the employer, it is relatively easy to change them.

steampowered

kdubbett wrote: »

Thanks steampowered.

We are now working for the larger company which bought us apparently (e.g. all letterheads/emails changed) but we've not been told anything really apart from that we are going to be TUPEd. Haven't either the old company or the new company got a duty to tell us what's going on in writing?

You need to work out whether the legal identity of the company employing you has changed.

For example, if the company employing you has simply changed its name and letterhead, it is still the same company. This is very common following an acquisition and in this situation TUPE does not apply (meaning there would be no legal obligation on anybody to tell you what's going on).

I suggest you try to look up the employer mentioned in your employment contract, and the company which pays you, to see if they are two different companies or if they have just changed their names. You can look this up here: https://beta.companieshouse.gov.uk/. Click on the name of your company and it will tell you underneath the "Accounts" section if there have been any name changes.

kdubbett

The previous/old company (i'll call it A) was definitely purchased by the bigger company (B). Companies House say that A became a subsidiary of B in April but since 01 August, we've been told that we now work for B and were told, in July, that our contracts would be TUPEd to B. My salary is now being paid by B but I've not seen a new contract. My old (A) staff handbook included things like what to do in the event of sickness (I was admitted to hospital recently and I'm sure the cause was stress related to all this new company stuff), working hours, etc. so if these hasn't been replaced, does it mean the old (A) ones still apply?

steampowered

The previous/old company (i'll call it A) was definitely purchased by the bigger company (B). Companies House say that A became a subsidiary of B in April but since 01 August, we've been told that we now work for B and were told, in July, that our contracts would be TUPEd to B.

It sounds like you worked for company A, and that the shares in company A were purchased by company B.

If that's correct, you probably still work for company A. The fact that the shares in company A has been bought by company A doesn't make any difference from an employment law perspective.

In the case of a company acquisition, it would be rare to get TUPEd from company A to company B. There is no real reason for an employer to want to do this as there is no real benefit and it would create a bunch of additional legal complications, paperwork and consultation obligations. The only situation I can think of where a subsidiary company would want to TUPE you to a parent company would be in a situation where the subsidiary company is insolvent.

I think it is more likely that whoever told you that you were getting TUPEd to B doesn't understand the basics of TUPE. It is a common mistake for people to make, lots of people incorrectly assume that TUPE will apply in the case of a company changing ownership (it doesn't).

My old (A) staff handbook included things like what to do in the event of sickness (I was admitted to hospital recently and I'm sure the cause was stress related to all this new company stuff), working hours, etc. so if these hasn't been replaced, does it mean the old (A) ones still apply?

I suppose the same principles will apply as for any company. If the old staff handbook has not been withdrawn or replaced, then it should still apply.

Of course it is possible that the new management may be trying to implement sickness policies etc. which are not yet reflected in the out of date handbook.

Savvy_Sue

kdubbett wrote: »

My old (A) staff handbook included things like what to do in the event of sickness (I was admitted to hospital recently and I'm sure the cause was stress related to all this new company stuff), working hours, etc. so if these hasn't been replaced, does it mean the old (A) ones still apply?

In the absence of other advice, then yes, the old instructions remain. I'm guessing they're fairly common sense, along the lines of "you must speak to your line manager by x am if you are unable to attend work because of sickness" - who else are you going to contact? And if you have not been given different working hours, then how can you be expected to work other than your old hours?

What difficulties are they causing then?

sangie595

I cannot see any reason why there is an assumption that there hasn't been a TUPE when the OP has been told there is one. I accept that some people don't understand TUPE, but equally, there is no reason to say that has happened. In a TUPE there is no reason to issue new contracts or anything like that. So there is actually no evidence at all that a TUPE hasn't occurred.

But it is irrelevant. Until told otherwise, existing terms and conditions apply in any case.

steampowered

sangie595 wrote: »

I cannot see any reason why there is an assumption that there hasn't been a TUPE when the OP has been told there is one. I accept that some people don't understand TUPE, but equally, there is no reason to say that has happened. In a TUPE there is no reason to issue new contracts or anything like that. So there is actually no evidence at all that a TUPE hasn't occurred.

But it is irrelevant. Until told otherwise, existing terms and conditions apply in any case.

The finding that there has not been a TUPE transfer is based on this statement made by the Op:

'The previous/old company (i'll call it A) was definitely purchased by the bigger company (B). Companies House say that A became a subsidiary of B'.

If that statement is correct, TUPE doesn't apply. The fact that the shareholders of company A have changed is not relevant from an employment law perspective.

TUPE does not apply in circumstances where the shares of company A have been sold to company B. This is the structure used for the vast majority of acquisitions of smaller companies by larger companies. TUPE only applies to an acquisition where there has been a business transfer rather than a share transfer (i.e. company A sells its business to company B; the existing shareholders of company A retain ownership of company A). The latter structure is rarely used as it is far more complicated and expensive than a straightforward share acquisition.

This can all be definitively verified by looking at company A's annual return which is publicly available for free on Companies House, as that will tell you who the shareholders of company A are.

Savvy_Sue

But it seems to me worth saying (since the OP seems unclear) that whether or not there has been a TUPE, terms and conditions won't have changed unless a change has been advised.

Obviously in a TUPE situation changes can't be made immediately, but that's not to say changes can't be made quite easily.

However, if changes have not been advised, then you carry on doing what your previous terms and conditions say you need to do, until told different.

And if there's a problem with that, you have to ask the company, eg "I used to phone Fred if I was sick but you've moved Fred onto other duties so I am not sure who to phone now, please advise."