Were being Tupe'd out to an outsourcing company, who have turned round and said they don't need us, so are being offered a compromise agreement (decent terms).
We've just been told that our positions are being filled almost one for one by the outsourcing company, no problem with that… but one of these replacement was given a job last week & even given a moving allowance (London to up'North). He started a fresh with the outsourcing company whilst were are being told we are not required.

Now basically is there any point in making a fuss?
Could we get a better deal out of it, not interested in whether the companies get slapped on the wrist, just want to know if this could be made to work to our advantage or whether to ignore it and take the cash and go…

As I understand it, there's nothing stopping the recipient company from making you redundant on day #1. Ts & Cs are protected, the job is not. (I'm going through TUPE at the moment as an employee rep and someone in scope).

have no issue with that, but they are saying we are not required but then hiring new people to fulfil our positions.

Tbh, again as I understand it, I don't think there's any regulation to stop them doing that.

They should not be firing you and hiring someone else to do the same job. Are you being made redundant? If so the job is redundant and therefore no need to hire someone to do it. Hiring somone else to do your job would make the redundancy unfair dismissal.

american company?

Isn't the compromise agreement changing things a bit there TJ?

Could be.

They should not be firing you and hiring someone else to do the same job. Are you being made redundant?

Being offered the choice of redundancy or compromise agreement, HR are pushing us towards the CA as the best option "for us".

Well it is not and cannot be redundancy if they are hiring people to fill your jobs.

The compromise agreement would have to be very good for me to accept it. It would depend on Salary level and years of service as well as how easy to get another job but I would be wanting something like 6 months salary to shut up and go away.

I would be using that as a negotiating tool. threaten them with unfair dismissal claims

A compromise agreement is exactly that. They can also offer not only good terms but the opportunity to negotiate better. If they are offering you a compromise agreement then I believe that they also have to pay for you to get legal advice, i.e. someone who knows what they are talking about to check it over. I got a barrister to do mine who I'm sure wouldn't mind extra business. Email in profile if you want his contact details.

they also have to pay for you to get legal advice

We have been told that they will pay for legal advice, but have yet to see the Compromise agreement, let alone take it to a solicitor

Yeah – we got free legal advice up to £250 [5 years ago]

HOw much money is the real issue with the compromise agreement? It must be better than redundancy would be and IMO need to be a significant sum

Guys, you seem to know a lot about this. So, if the plan is to make people redundant as soon as they transfer…should the recipient company actually be offering a "compromise plan"?

I can only echo what Jeremy has said.

I am always suspicious of compromise agreements and redundancy. Mainly because it is the employee who tends to be the one doing most of the compromising.

Make it plain to your Employer that you understand the law on redundancy.

Make sure they pay you for things like un-taken holidays or any other contractual benefits you are owed.

By law they have to provide 'free' legal advice. Free means they will put some money towards a solicitor. No doubt they will also offer you their choice of solicitors. Try negotiate a decent amount to cover legal fees. This way you can take the CA to a trusted, independent solicitor for advice. I was offered a pathetic £300 (two years ago).

Best of luck.

I rna this past my boss, who's been doing a lot of work on TUPE recently, and he couldn't believe what he was hearing! My understanding, from what you've said, and his comments, is this:

If they're offering "redundancy" at the same time as filling the positions from outside the company, that sounds like a case for unfair dismissal – the positions obviously aren't redundant.

If you don't like the compromise agreement, start talking about employment tribunals; best if it's not just you, but a group, just so you've got more power, but you can take them on your own. What's the jobs market like round your way? Start looking, so that if there's nothing, you have evidene for loss of earnings – no alternative jobs at the same salary etc.

How long have you been in your current job, and are you entitled to anything other than statutory redundancy?

@ Pedalhead – the issue here is that the posts aren't redundant, as the employer is seeking staff to fill them. If they aren't replacing the staff, then the posts are redundant so they can offer a redundancy package to the employees currently filling them. Does this make sense?

I thought the employer already had the staff to do the work? This is a common scenario in my industry (IT services), where a company already has a critical mass of people to absorb work.

As I read it, the new company is recruiting staff to cover the new work at the same time as telling the TUPE lot that there are no vacancies. If the work can be absorbed by existing staff, there's no need to take on extra staff, so posts are redundant.

I'm sure someone with more knowledge than I've got will be along in a minute to correct me!

Yeah it sounds a bit fishy, but it's not clear from the OP whether these people have been recruited specifically to cover this work (maybe one guy but he could have been there anyway), which sounds naughty, or whether they happen to be in the destination org already, perhaps working on other stuff as well.

Either way, you're been made redundant…

Just make sure you get the best terms for YOU, sod the rest – 'cos they'll be doing the same – irrelevent what they say in public.

I also wouldn't waste the legal cash, suggest to HR that you'll take 50% of it as cash. Also make sure that you get as much as possible at net, don't be paying tax.

I work for an IT consultancy that does a lot of outsourcing + acquisitions so we have people TUPE'ing over on a regular basis. I'm not involved at the HR level but from what I understand TUPE gives you a lot of protection. As TJ says they are entitled to make the job redundant and have existing staff take on your old responsibilities (this is to be expected as it's the easiest way to drive down costs so the company can make money). However they can't make you redundant and then recruit someone else to do your old job.
We end up having to take on people with ridiculous salaries and benefits (because they've worked at their old place for a long time and the old employer paid above the market rate anyway), I've got junior people in my team who are less experienced and less qualified than me (and report to me) who are paid over 20% more than me (they're even contracted to work less hours per week as it's based on their original terms). If they're crap at their job you can eventually get rid of them (they aren't in my case, they're just over-paid) but it takes a while and I'm pretty sure there is a statutory period between when you make a job redundant and when you can re-create that role and employ someone new.
From the inside out I see TUPE vastly weights things in the employees favour (which is no bad thing) so I can't believe you can get screwed over the way you're suggesting (otherwise I'm sure the place I work for would do it…).

FW, all I can tell you is what I know, I'm not exaggerating for effect.
The outsourcing company seem to be taking the pi$$.

Admittedly my compromise agreement is already along the terms of those suggested above, so doesn't sound like I'm going to get any more out of them. I'm not interested in causing issues unless it will benefit me, whether or not what they are doing is underhand.
As maybe I could cause a fuss and maybe get employed by the outsourcing company, but my expectaction would be that they would then spend the whole time looking for me slip up and get enough warnings to sack me…

zippy – but what you should be doing is using the irregularities they have made as leverage to increase your compromise agreement.

they will never offer the max without you pressuring them. Tell them to double the amount of money you are being offered or you will be going to tribunal for unfair dismissal.

do any of you know what TUPE stands for ?
Transfer of Undertaking protocol
The company has taken over the function that you currently do given this how the **** can they make you redundnant as the ystill have to do the function you did? The role cannot be made redundant – certain support roles [HR , IT etc may be vulnerble but everything?
You go over with your current T& C and they cannot be altered – that os essentially the point of TUPE to protect your T & C – some get outs but I doubt they apply here – I suspect they have made a HUGE error in what thye have done and have probably broken the law
They are taking the pi55 refuse and just repeat unfair dismissal to them again and again and again. Perhaps somne details you have oimitted alter this though

Read THIS
REALLY read it please TUPE is complicated and I doubt they have an actual optout reason – not least because they are offering to employ you if you alter your T & C [which TUPE spefically exists to protects]to something worse I assume.
See a solicitor and take them to the cleaners IMHO.

PLEASE READ THE GUIDE

JY I'm no employment expert (as should be obvious) but I believe the relevent term to use is 'business requirements', they seem to be able to do anything they like using this term. BUT importantly it depends on them already having the staff to complete the work being taken on, by taking on more people instead of us, that seemingly blows their 'business requirements' out of the window.

They cannot use business requirements as a catch all – nor should they be offering a choice of redundancy or compromise agreement, nor should they be offering redundancy and taking on staff. ( simplistically)

really – you are being shafted – but its Ok for them to buy your contract out – the compromise agreement – so long as it is seriously worth your while. Efffectivly that is what they are offering to do – so if they offer you £x you should go back asking for £x2 – x4 and settle out for somewhere in between.

READ THE GUIDE PLEASE
there are very strict limits on when they can do that – that is the whole point of TUPE to stop them doing this. By employing other people to do your job and changing your T & C they would invalidate that claim [ETO]and IMHO they will have broken the law – constructive dismissal would be a no brainer from what I am reading here. Just read the guide I cannot copy from the pdf for some reason see page 13 bootom off for exact definition of an ETO – the ony reason they can have for being exempt from TUPE. I assume they have not done this in writing get everything possible in writing from them especially the bits about changes to T & C and other people doing your job – chalenge them on what the ETO reason is. My guess is they are confuing a merger with a TUPE and acting as if it is the former and doing things they cannot do legally in a TUPE but could in a merger.