Tupe 10 years ago now redundancy NHS

dotchas · 21 May 2018 at 9:09PM

My OH started work in the NHS 35 years ago. Approx 10 years ago, he was TUPE transferred to a private company in a PFI hospital.
Now this company is making him redundant.
They are only offering statutory redundancy for the 10 years and not the enhanced redundancy that he would have been entitled to with the NHS and not taking his 35 years service into account.
Also at 55 years old , should early retirement be an option?
The company are not being forthcoming and neither is the union:mad:

marlot · 22 May 2018 at 7:24AM

Under TUPE he should be regarded as having 35 years service.

Whether he's entitled to enhanced redunancy may depend upon the agreement between his new employer and the NHS when the TUPE happened. I made sure I got a copy of this when the TUPE occurred, and even managed to get it written into my contract. And fortunately my new employer did the honorable thing. I regard myself as very fortunate!

I'd escalate up the union - they'll have a TUPE specialist somewhere. Also does he/you have access to a legal advice service as part of your house insurance?

p00hsticks · 22 May 2018 at 8:50AM

marlot wrote: »

I'd escalate up the union - they'll have a TUPE specialist somewhere. Also does he/you have access to a legal advice service as part of your house insurance?

I think that legal advice included with house insurance doesn't usually cover employment disputes, which I guess this would count as, but it's worth checking.

antrobus · 22 May 2018 at 8:55AM

I'd agree that the OH in question should be treated as having 35 years service. Although statutory redundancy is capped at 20 years.

The question regarding NHS enhanced redundancy is trickier. It's a question only only an employment lawyer can answer, It may well be that TUPE does not apply.

In the disappointing judgment in Frankling and Others v BPS Public Sector Limited, the Employment Appeal Tribunal has ruled that entitlement to enhanced redundancy benefits under Section 46 of the Whitley Council Agreement does not transfer under TUPE. This means that, where Trusts and other Health Service employers contract out services into the private sector, employees who are subsequently made redundant by their new employer in the private sector cannot claim the benefit of the enhanced redundancy provisions contained in Section 46. The effects of the Judgment will be felt throughout the public sector where similar enhanced redundancy provisions apply.

https://www.thompsonstradeunion.law/news/lelr/weekly-issue-27-october-1998/setback-for-redundancy-rights

That was in 1998. Whether that is still the case I do not know. It may depend on specifically what was agreed when the transfer took place.

dotchas · 22 May 2018 at 10:50AM

Thank you all for your advice, I guess its worth investigating. There was a chance of redundancy a few years back and he was offered more then than now so I guess they were offering the enhanced rate.

The company are trying their hardest not to pay anything or offer other jobs.
Does anyone know if he could be eligible for early retirement?

dcfc67 · 22 May 2018 at 3:40PM

Speak to your regional officer from the union. i presume you was TUPE transferred to someone like Skanska, Vinci or Interserve.
Speak to the rep who attends RISC meetings they can speak to other reps in your region.
We have reps in our region who were TUPE transferred to Interserve and Skanska and they attend RISC meetings.

Your regional officer needs to do some groundwork for you here

JReacher1 · 22 May 2018 at 4:18PM

We had a similar situation at work recently where some people were tuped over to a new company and there have been some redundancies. The redundancy terms are less generous than the terms offered by the original company but apparently unless it is put into the agreement when TUPED over they do not apply

dotchas · 22 May 2018 at 5:27PM

Thanks again, OH was originally Tupe'd over to Haden Building Management when the PFI hospital was opened. But the contract has changed several times in the last 10 years.

The strange thing is that he was offered more when there was a chance of redundancy a few years ago, but that was a different company that held the contract at that time.

I still wonder if early retirement would be better?

Tupe 10 years ago now redundancy NHS

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