TUPE and Redudancy procedures/timescale questions

cash99

Definitely worth speaking to a solicitor at this stage, most do free 30 mins consultations.

There was a recent Scottish case ( not binding in the UK) which said that redundancies by the existing employer in advance of a TUPE transfer were unfair.

http://www.journalonline.co.uk/article/1004525.aspx

It may also be the case that the new employer has a better redundancy scheme than the existing employer, and he could be missing out.

Realistically you OH is likley to end up being made redundant, but if both companies are not playing by the rules then you should be able to get them to pay more money.

mggirl

Interesting article.
Thank you.

It worries me that the timescales are so tight, we might miss some crucial deadline or element in setting tribunal wheels in motion.

We're realistic he's not going to have a job, but don't want to mess up any potential compensation.

It hadn't crossed my mind about potentially better redundancy on the 'other side' so to speak.

Debt_Free_Chick

mggirl wrote: »

It hadn't crossed my mind about potentially better redundancy on the 'other side' so to speak.

Even if he were TUPEd to the new employer, he's not entitled to the better terms. He's only entitled to terms that are no worse than his current employer gives him. He cannot argue that he is, or might be, entitled to the (better) terms that the new company gives to their current employees. Those terms might never be offered to employees in the other company (where your husband is) and there is no requirement for them to be offered.

Re the Scottish Case .... be very careful. The facts of that case and the arguments used by the Plaintiff do not apply to your husband's situation (in particular, in the Scottish Case the new employer did not legally exist - but it's definitely worth checking out. In particular (from that earlier link)

"In short, prior planning with consultation in advance of a TUPE scenario can only be that. No dismissals should be made by the transferor on behalf of the transferee. After transfer day happens, they can then be made by the transferee for his reasons, but there is likely to be an additional cost in terms of notice pay."

Although not binding in England, this is helpful as TUPE is only the UK's adaptation of European legislation - so it would be odd, if it were interepreted one way in one country and differently in another. But then, the law can appear to be "odd" at times!

Re the appeal. He should appeal - if only as, if he goes to Tribunal, the Tribunal would expect that he had pursued all the internal options. So he should write and simply explain why he should be retained. Avoid comparing himself to other people - he needs to pitch his skills and experience against those required for the job.

HTH

mggirl

Thanks for you help once again. It's hard to be objective tbh.

Just to clarify it in my own mind....

It's o.k to go through the redundancy process with both sides before transfer, but can only be made redundant once transferred ?

Who should his letter be addressed to ? His current employer or both ?

Debt_Free_Chick

mggirl wrote: »

Thanks for you help once again. It's hard to be objective tbh.

Just to clarify it in my own mind....

It's o.k to go through the redundancy process with both sides before transfer, but can only be made redundant once transferred ?

According to the law in Scotland, yes. But the law in England has either decided otherwise, or it's not been tested in Court.

Who should his letter be addressed to ? His current employer or both ?

It won't do any harm to send it to both, but as it's his current employer who is making the job redundant, it's their issue (only) to deal with.

HTH

cash99

Debt_Free_Chick wrote: »

Even if he were TUPEd to the new employer, he's not entitled to the better terms. He's only entitled to terms that are no worse than his current employer gives him. He cannot argue that he is, or might be, entitled to the (better) terms that the new company gives to their current employees. Those terms might never be offered to employees in the other company (where your husband is) and there is no requirement for them to be offered.

Surely once he is transferred and redundacnies are considered the new employer has to look at all its employees. Unless the redundancy terms were part of the employment contract how could the new employer discriminate on the terms offered to people being made redundant based on whether or not they were TUPE transferees or not. If the employer has an established non contractual scheme surely this would apply to all employess.

Debt_Free_Chick wrote: »

Re the Scottish Case .... be very careful. The facts of that case and the arguments used by the Plaintiff do not apply to your husband's situation (in particular, in the Scottish Case the new employer did not legally exist - but it's definitely worth checking out. In particular (from that earlier link)

"In short, prior planning with consultation in advance of a TUPE scenario can only be that. No dismissals should be made by the transferor on behalf of the transferee. After transfer day happens, they can then be made by the transferee for his reasons, but there is likely to be an additional cost in terms of notice pay."

The general point of the case was the the transferor cannot make employees redundant on behalf of the transferee, which is absolutely what is happening here. ( Although this is only binding in Scotland)

The companies involved seem at best confused as to what is going on, given the different letters etc, from the different parties.Definitley time to seek professional advice, even if its just to understand where you stand.

The company may offer a reasonable settlement it which case you won't need to fight.

mggirl

Thanks for all the input.

I've taken the advice, checked my household insurance and found we have legal cover, including employment advice.

Currently waiting on a ring back.

As far as I can tell, those without a job are being made redundant before transfer date with pay from current employer. No mention of PILON or appropriate notice periods.

Those they want are being transferred under TUPE.

It doesn't seem right to be me, but I can't see the wood for the trees

Debt_Free_Chick

cash99 wrote: »

Surely once he is transferred and redundacnies are considered the new employer has to look at all its employees. Unless the redundancy terms were part of the employment contract how could the new employer discriminate on the terms offered to people being made redundant based on whether or not they were TUPE transferees or not. If the employer has an established non contractual scheme surely this would apply to all employess.

There is no requirement to harmonise terms and conditions across all employees. Different terms and conditions can apply (subject to existing anti discrimination rules) to the different groups of employees.

The general point of the case was the the transferor cannot make employees redundant on behalf of the transferee, which is absolutely what is happening here. ( Although this is only binding in Scotland)

I didn't read it as quite that clear cut. The existing company can dismiss assuming it has grounds to do so. But it would be unwise for the existing company to dismiss on grounds chosen by the new employer - the existing employer must dismiss according to its own criteria, not those of the new employer.

The companies involved seem at best confused as to what is going on, given the different letters etc, from the different parties.Definitley time to seek professional advice, even if its just to understand where you stand.

Agree - but appeal anyway (as that will be the initial advice).

The company may offer a reasonable settlement it which case you won't need to fight.

Agreed - but get your solicitor to advise on whether the amount offered is sufficient. In my experience, employer's never offer the maximum at first and there is always room for negotiation. They are likely to go up to whatever amount would be awarded by Tribunal