Help! TUPE, Should I be offered redundancy pay?

b3ssy29

Hi, this is only my second time posting so apologies if it is in the wrong place. The company I work for (and have worked for for the last 8 years) is in the process of being taken over and we are currently in the consultation period. We have been informed that our premises are being relocated to an office space a further 9 miles away from our current office. My contract currently states my place of work as being the office I currently work in with no mobility clause. They have sited an Organisational restructure as the reason for the move and are in the process of giving us new contracts which will now include a mobility clause. They have said that we can apply to work from home, but the application process doesnt take place until after the move and more than a month after my consultation period ends, with no information on how long the application process will take. I understand that 9 miles is a relatively short distance for most people however I am a parent to two small children, and my shift starts at 8am. Their schools breakfast club doesnt open until 07:45. At the moment I have just enough time to drop the kids off and get to work, but the new location will mean approximately an additional 20-30 minutes journey time for me, so i will not be able to make it in time for the start of my shift. I can possibily arrange some arrange childcare occasionally but not on a daily basis. I have explained all of this to HR, and  have stated that I will be happy to sign the new contract with an agreement that I will, for the majority of the time work from home. They refused to agree to this until after my consultation period ends and I am required to sign the contract and have said the new location is a reasonable distance and if I refuse to accept it, I'll be dismissed under SOSR. They are mot offering any kind of compensation and are also saying I am not entitled to redundancy as they are allowed to make contractual changes under ETO. Is this right? I've looked on the gov website and my understanding is that i should be offered redundancy if the move would interfere with my childrens care/education? Any advice would be greatly appreciated. 

swampduck

It may be worth a phone call to ACAS and see what advice they can offer.

Thrugelmir

If you are in the consultation period then it maybe the case that you are made redundant anyway. All employees need to be offered the opportunity to relocate irrespective of whether they have a mobility clause in their employment contract. As not to do so anounts potentially unfair dismissal. At the moment your HR team is most likely dealing with the much bigger picture rather than dealing with individual specific cases. Will be the acquirer that's calling the shots. 

b3ssy29

Thrugelmir said:

If you are in the consultation period then it maybe the case that you are made redundant anyway. All employees need to be offered the opportunity to relocate irrespective of whether they have a mobility clause in their employment contract. As not to do so anounts potentially unfair dismissal. At the moment your HR team is most likely dealing with the much bigger picture rather than dealing with individual specific cases. Will be the acquirer that's calling the shots. 

Thanks for responding. I currently have 30 days of my 45 consultation period left after which they have have said If i do not accept the new terms I will be be dismissed under SOSR. They seem to be taking a take it or leave approach at the moment. I had an email today stating that we cannot apply to work from home until after the location change which is in may, after which I would have already agreed to the new terms and then be contractually obligated to move if my application was unsuccessful. I had asked if the application date for this could be moved forward and was met with the response "this is the date and it will not be changed". I think some advise from acas is probably my best option, but I just wanted to know if I was completely barking up the wrong tree as they are adamant that redundancy will not be offered. 

mjm3346

They haven’t ‘unreasonably’ refused an offer of suitable alternative work

‘Unreasonable’ could mean refusing to move even though the new location is nearby and the employee could drive or easily take public transport.

However, it may be reasonable to say no if it involves a difficult journey or affects personal matters like children’s education.

Thrugelmir

b3ssy29 said:

Thrugelmir said:

If you are in the consultation period then it maybe the case that you are made redundant anyway. All employees need to be offered the opportunity to relocate irrespective of whether they have a mobility clause in their employment contract. As not to do so anounts potentially unfair dismissal. At the moment your HR team is most likely dealing with the much bigger picture rather than dealing with individual specific cases. Will be the acquirer that's calling the shots. 

Thanks for responding. I currently have 30 days of my 45 consultation period left after which they have have said If i do not accept the new terms I will be be dismissed under SOSR. They seem to be taking a take it or leave approach at the moment. I had an email today stating that we cannot apply to work from home until after the location change which is in may, after which I would have already agreed to the new terms and then be contractually obligated to move if my application was unsuccessful. I had asked if the application date for this could be moved forward and was met with the response "this is the date and it will not be changed". I think some advise from acas is probably my best option, but I just wanted to know if I was completely barking up the wrong tree as they are adamant that redundancy will not be offered. 

The issue would appear to be this under the TUPE regulations. 

Before a TUPE transfer

The employer taking on the transfer (the new employer) and the employer making the transfer (the old employer) cannot make any redundancies before a TUPE transfer if the reasons relate to the transfer. 

As for SOSR. One assumes that they've identified this as being a justifiable reason. 

2. Changes to terms and conditions

If you have good business reasons to change terms and conditions employment and you have staff who refuse to accept them, a SOSR dismissal followed by reengagement on the new terms may be an option.

thebrexitunicorn

b3ssy29 said:

Hi, this is only my second time posting so apologies if it is in the wrong place. The company I work for (and have worked for for the last 8 years) is in the process of being taken over and we are currently in the consultation period. We have been informed that our premises are being relocated to an office space a further 9 miles away from our current office. My contract currently states my place of work as being the office I currently work in with no mobility clause. They have sited an Organisational restructure as the reason for the move and are in the process of giving us new contracts which will now include a mobility clause. They have said that we can apply to work from home, but the application process doesnt take place until after the move and more than a month after my consultation period ends, with no information on how long the application process will take. I understand that 9 miles is a relatively short distance for most people however I am a parent to two small children, and my shift starts at 8am. Their schools breakfast club doesnt open until 07:45. At the moment I have just enough time to drop the kids off and get to work, but the new location will mean approximately an additional 20-30 minutes journey time for me, so i will not be able to make it in time for the start of my shift. I can possibily arrange some arrange childcare occasionally but not on a daily basis. I have explained all of this to HR, and  have stated that I will be happy to sign the new contract with an agreement that I will, for the majority of the time work from home. They refused to agree to this until after my consultation period ends and I am required to sign the contract and have said the new location is a reasonable distance and if I refuse to accept it, I'll be dismissed under SOSR. They are mot offering any kind of compensation and are also saying I am not entitled to redundancy as they are allowed to make contractual changes under ETO. Is this right? I've looked on the gov website and my understanding is that i should be offered redundancy if the move would interfere with my childrens care/education? Any advice would be greatly appreciated. 

The imposition of a new contract immediately prior to the transfer is not usual.  You should transfer on your existing contract and from the situation you describe you may well be entitled to redundancy.   It would be the new employer who makes you redundant. 

The old employer can dismiss for SOSR, but it’s quite possible that the dismissal would be unfair.  You shouldn’t be dismissed in anticipation of a transfer.  If you’re in a union (I assume you’re not), that would be your first stop for advice.  

Remember that you have the option of signing a new contract under protest I.e sign and write under protest beside your signature.  If it was me I’d try to get legal advice before even considering signing a contract that I know I can’t fulfill.  At the very least contact the Acas helpline.  

getmore4less

If I read this right your current employer does not have any business at the new location.

They plan to relocate people.

Then that unit gets TUPE to the new employer on new terms at the new location.

Chances are the terms of the takeover required this to happen first to sweeten the deal.

b3ssy29

getmore4less said:

If I read this right your current employer does not have any business at the new location.

They plan to relocate people.

Then that unit gets TUPE to the new employer on new terms at the new location.

Chances are the terms of the takeover required this to happen first to sweeten the deal.

Sorry for the delayed response. This was what I had originally thought was happening, however as I've been speaking with HR they have said that the actual takeover has already been completed which has brought up a completely new issue. This is the first consultation period any of us have had and the first time we've had any employee representation, so my issue now is that this should have happened before the actual transfer took place. I think the fact that we didnt even realise it had been completed shows how I'll informed we have been about the whole thing. I'm having another consultation with HR tomorrow to discuss this further, but what they have said so far through email is that this was the responsibilty of the previous employer. When I've looked at the acas website though it says that they are jointly responsibilty to ensure that this happens. Aside from a few letters saying that nothing would be changing in relation to our actual jobs we had no communication from either side. 

getmore4less

At least that clarifies it's the new employer that is making the change.

Contract with location and no mobility looks like redundancy if that job is going

Down to suitable alternative at the new location.