Tupe ? unaware of any transfer

Zakazulu5

Hi, not sure if anyone can shed some light.. its quite long winded so bear with me..
I worked for my previous employers for 6 years but always supported the same client whilst with the company. Anyhow unison were involved, due to underpayments on sleep ins/waking nights, and we were told we had a strong case where i was to recieve a back payment for underpayment of wages. Anyway to cut a long story short, a solicitor was appointed by my unison rep and they undertook meeting with my then employers. This is where it becomes complicated, my company said due to the new sleep rates having to go up, and their funding not allowing so, they were terminating the contract wuth the client i had supported for 6 years, basically only giving a few weeks notice. The family of the client on hearing this looked in to ways of getting another care provider, as the client was settled and happy with their staff.. The family decided the best way was through direct payment, they asked if i wanted to stay with the client, which i did, as i didnt want to be travelling miles by staying with my then company, , so i resigned, giving them notice to the end date of their contract with the client, which was received via email and aknowledged by management. So since then, meetings with previous employers have been happening involving my solicitor and rep, the previous employer threw into the mix, i was tupe transferred over to the new provider (which in this case is the client i support) so basically they are trying to pass financial responsibility away from themselves. I was never informed of any tupe transfer, and wondered how this can possibly be legal.. i had an offer made to me initially from previous employer to settle the case but on advice of my solicitor i was advised to reject the offer.. now a 2nd offer has been made to everyone involved except a hanful of employees that resigned and went over to direct payment.. The gentlemens family have never been informed of tupe, so im wondering how they are getting away with this.. Its still going ahead and hopefully getting ready for it to go infront of a tribunal .. i just cant believe they are trying to put financial responsibility on someone that was once their client.. Any advice greatly appreciated..

sangie595

I'm afraid that they may be correct. You'll have to leave your union to handle this, as it's only going to be determined by the detail. But they are no longer former clients or clients - they are employers. And it is their responsibility to be aware of employment law and their obligations under it. In a TUPE legal obligations and liabilities can pass to the new employer.

Zakazulu5

Thanks for the reply.. But surely we all should have been made aware a tupe transfer was taking place? .. I could have stayed with the company but the hours and distance to travel didnt suit, so it made my decision easier to hand in my resignation..
Thanks

Nicki

What's the nature of your dispute with the former employer? Does this all relate to the underpayments for sleep ins whilst employed by them or are you seeking a redundancy payment or some other form of payment?

Zakazulu5

Hi Nicki, undepayment of sleep ins, , but previous employers were made aware we were taking action against unlawful pay for sleep ins, when they ended tgeir contract with client, so it makes it all a bit more complicated..

mariefab

When your former employer gave the client notice that they were terminating the contract; did they specify the last date on which the contract would be performed? (Date X)
In your resignation email did you give Date X as the date that your notice would end?
When management acknowledged your resignation did they confirm that your employment would end on Date X?

If your answer to all 3 questions is Yes I don't believe that your employment could have transferred.

When TUPE is in play and an employee 'objects' to the transfer their employment does not transfer. The explanation given for this, in caselaw, is that an objection is equivalent to a resignation. I can't see why an actual resignation would be any different.

Zakazulu5

Hi, yes to all.We recieved a letter saying due to the sleep increased payments, they were terminating the contract with that particular client, and gave a date (only 3 weeks notice) so i handed my notice in to work upto the date before the contract was terminated.. although my contract wasnt being terminated, as i could have worked elsewhere in the company (although not suitable hours for me), so i decided to hand my notice in, so i could continue to care for the client..

sangie595

But regardless of that, your new employer chose to pick up an existing service and enticed you to be employed by them to provide the same service. You are in a union. This is what you pay them for. Leave it to them!

Zakazulu5

The new employer being the clients family/client (direct payments) and they were left with little option, as their contract was ended by the company, who are now trying to hand over the financial responsibility to the service user. It was ended as they couldnt pay minimum wage for sleeps, which is what they were told they had to.
I wasnt enticed , my company didnt give me much option, it was all so quick.
Ive found a letter from the company and at the bottom they have thanked me for my service, and said i didnt need to resign as i would have been covered by TUPE. They go on to write if im still working with the same client i have fortified any employer benefits that they were offering me..

humptydumptybits

mariefab wrote: »

When your former employer gave the client notice that they were terminating the contract; did they specify the last date on which the contract would be performed? (Date X)
In your resignation email did you give Date X as the date that your notice would end?
When management acknowledged your resignation did they confirm that your employment would end on Date X?

If your answer to all 3 questions is Yes I don't believe that your employment could have transferred.

When TUPE is in play and an employee 'objects' to the transfer their employment does not transfer. The explanation given for this, in caselaw, is that an objection is equivalent to a resignation. I can't see why an actual resignation would be any different.

I agree it doesn't sound like TUPE is relevant.

elsien

Did you realise you've just dragged up a 3 month old thread?