TUPE process, can you do part of a department?

SRRAE

My employer is TUPE'ing about half of its IT division I work in.

Most of it they are doing whole departments, ie, the whole service desk, the whole email department etc.

However in my team of 7 the are TUPE'ing 3 of us and retaining 4 to stay internal.  However they are bringing in 1 person from another department into the internal department.

I thought TUPE had to a whole role or department. Are they allowed to TUPE part of a team considering we do virtually the same thing?

My role performance management, quality control and reporting of a managed service.  I am being TUPE'd to the company I performance manage. They have their own reporting and quality control departments so I don't know what I'm expected to do.

p00hsticks

No, having been though the process twice myself, it's entirely up to the two sides to agree on which individuals are to  transfer over and who are to be retained. In some cases it makes sense for whole departments to move, other departments may stay or in some cases some people in a department move and some stay. 

SRRAE

p00hsticks said:

No, having been though the process twice myself, it's entirely up to the two sides to agree on which individuals are to  transfer over and who are to be retained. In some cases it makes sense for whole departments to move, other departments may stay or in some cases some people in a department move and some stay. 

Right. I did ask why I was selected but not given an answer. It is strange the longest serving members were tuped and the 2 part time employees kept.

Puddings

Yes, part departments can be TUPE'd if the work is being 'shared' between two companies, both companies will need to agree/argue who/how many will transfer. 

DullGreyGuy

SRRAE said:

My employer is TUPE'ing about half of its IT division I work in.

Most of it they are doing whole departments, ie, the whole service desk, the whole email department etc.

However in my team of 7 the are TUPE'ing 3 of us and retaining 4 to stay internal.  However they are bringing in 1 person from another department into the internal department.

I thought TUPE had to a whole role or department. Are they allowed to TUPE part of a team considering we do virtually the same thing?

My role performance management, quality control and reporting of a managed service.  I am being TUPE'd to the company I performance manage. They have their own reporting and quality control departments so I don't know what I'm expected to do.

TUPE defines rules about employees that have been transferred... it says nothing on the selection of who transfers or anything else. A transfer can be anything from a single employee to a whole company; no rules about not splitting teams or departments. 

There are lots of scenarios why a company may want to not transfer everyone... in one client they decided to downsize the Helpdesk so their employees dealt only with core hours and baseline of tickets. They TUPEd the rest of the team over to an outsourcer who'd provide out of hours and overflow support. Both groups did the identical jobs before the transfer and continued in the same role, initially anyway, after the transfer (overtime some things changed for the transferred employees). 

The same client decided to outsource all of their customer contact but they wanted to retain and increase the team that does spot checks on files etc so some contact centre staff applied for those jobs and the successful ones avoided the transfer. There were big changes for everyone though in that case because part of the case for the outsourcer was migrating systems to their solution so both sets of employees had new tools to learn. 

oliver1951

It may be helpful to understand a little about the TUPE regulations. In essence they were put in place to protect employees who are transferred from one legal entity to another. It protects their salaries and benefits etc. Of course any subsequent employee contract negotiations can change that. So if company a is selling its business to company Z then company Z can choose who it will take. It’s all part of the negotiation but it’s up to company Z who it will take. If you aren’t selling a whole legal entity it becomes a bit more complicated, but the essence is still the same, employees who are transferred from one legal entity to another are protected by the TUPE rules, but the selling and buying companies will determine who is transferred. If this is not a sale situation but is being done within groups of companies then the same applies in terms of TUPE protections, but clearly corporate management  is deciding who moves, but moving between the legal entities within a group of companies still triggers the TUPE protections. Pay and conditions may vary between group companies.

DullGreyGuy

oliver1951 said:

It may be helpful to understand a little about the TUPE regulations. In essence they were put in place to protect employees who are transferred from one legal entity to another. It protects their salaries and benefits etc. Of course any subsequent employee contract negotiations can change that. So if company a is selling its business to company Z then company Z can choose who it will take. It’s all part of the negotiation but it’s up to company Z who it will take. If you aren’t selling a whole legal entity it becomes a bit more complicated, but the essence is still the same, employees who are transferred from one legal entity to another are protected by the TUPE rules, but the selling and buying companies will determine who is transferred. If this is not a sale situation but is being done within groups of companies then the same applies in terms of TUPE protections, but clearly corporate management  is deciding who moves, but moving between the legal entities within a group of companies still triggers the TUPE protections. Pay and conditions may vary between group companies.

If you are selling a whole company then there is no TUPE, the employee was employed by ABC Ltd before the sale and employed by ABC Ltd after the sale. The fact that the shareholder has changed from CBA Ltd to XYZ PLC is totally irrelevant for TUPE. 

As you say, TUPE is about people who change their employer so if XYZ PLC decide they don't want the liabilities of ABC Ltd so buy everything other than the company then the employer changes from ABC Ltd to XYZ PLC and TUPE applies. 

Moving between group companies can also be the opening steps of a demerger/acquisition etc, if TUPE didn't apply then a company could just spin up a new service company, move employees across and then sell that service company. As above the sale wouldn't be covered by TUPE and hence why the positioning move has to be. 

SRRAE

I'm in a situation where when I told the new employer what I do, performance management and reporting, they were concerned. They have their own departments who do this and don't require me to perform those tasks for them but  expressed concern continuing my expected role under them could generate a conflict of interest.

Ill guess I'll find out in the next week.

elsien

Is it possible that if your role is no longer required then they may be looking at redundancy? 

We had that in my last job. Staff were TUPE’d and some managers were made redundant because the new company decided they didn’t need as many with their own staff as well.
I don’t want to worry you, but it’s a possibility you might want to start thinking about.

redofromstart

The key thing with TUPE is what your role is. Is the work that you are expressly employed to do wholly or mainly transferring to a new provider?

if you (or your colleagues) are wholly or mainly genuinely demonstrably employed to provide advice or support on the ABC contract then TUPE may apply.  If you are employed as a pool and you all provide advice for every contract then it may not apply and there may be scope for not transferring or redundancy if the overall volume of work is reducing. What sometimes happens in that circumstance is the outgoing and incoming providers agree to the division of staff in the interest of avoiding tribunals, and keeping skills. 

If it's share purchase of a limited company then TUPE doesn't apply.  

If it does apply and the new company already has people who do what you do but wants to reduce the numbers post transfer then in theory everyone who does that role should go in the pool to reduce x people to y, not just the transferees, and failure to do that gives you a strong claim for unfair dismissal. 

if you knocked on my door for advice, my first questions are what do you do in a day to day basis, for whom and is it contractual. The day after the transfer who is responsible for the work? What do you want to achieve? Transfer/stay/lay off/ post transfer redundancy - different tactics for each outcome.  Don't want to transfer - argue that you are not wholly or mainly employed on the transferring contract. Do want to transfer, argue that you are, affirm this to new contractor and remind them that all of X post must go into a redundancy pool and demonstrate why you are worth keeping. 

Hope this helps.