TUPE and redundancy.

Home Forum Chat Forum TUPE and redundancy.

Viewing 23 posts - 1 through 23 (of 23 total)
  • TUPE and redundancy.
  • Premier Icon Kryton57
    Subscriber

    Mrs K faces being TUPE’d over soon, same job, different company BUT crucially different software to the one she is expert in.

    So the worry is, how worried do we need to be for her future? My understanding is that unless the new company’s remit changes to that which she cannot contribute, or there is a major reorg which removes her position, she’s ok, and with regard to the latter they company will probably avoid that because they’d have employees in tribunal attempting to prove that new job a is very similar to old job b.

    Anyone with experience of this?

    Premier Icon Kryton57
    Subscriber
    Premier Icon stumpyjon
    Subscriber

    Not safe at all, all TUPE does is retain your existing terms and conditions which can be good if your old employer had enhanced redundancy terms. If her new employer decides to shed people they will be able set criteria (with consultation although that may be window dressing) and select those who meet the criteria for redundancy. Not having the skills or experience to use the new system when others have that could well one criteria for redundancy.

    Doesn’t have to be a major reorg, could be one position at a time. As for tribunal, it’s rare to go tribunal over redundancy selection, unless the company has grossly cocked uo tbe process you won’t have any real grounds, would be better off taking the money and moving on. If they’ve decided fairly or not to get rid of you do you really want to hanv around.

    That all said I wouldn’t worry until they start making annoucements, they might not be intending to downsize.

    Premier Icon garage-dweller
    Subscriber

    TUPE stands for the transfer of undertakings protection of employment regulations.

    They are all about protecting workers involved in a transfer from having certain aspects of their package, service history etc changed. They don’t prevent subsequent redundancy programmes or changing job roles, reskilling etc providing these things are done properly. It should ensure that if she was made redundant she gets paid out based on her service pre transfer.

    Sorry if I am not explaining very well as tapping into a phone screen. It is a legal mine field so if there is something that is of actual immediate concern then get an employment lawyer to give you some current advice.

    Premier Icon mikewsmith
    Subscriber

    So the worry is, how worried do we need to be for her future?

    Some sound advice I was given a while back, your only as secure as your notice period.

    Sounds like they are being accommodating and giving her the chance so go with it (but as with anything else have a plan B)

    project
    Member

    They could make her job redundant as the job already exists in the new place of work, or transfer her to a new place of work, which she would find difficult to get to, so she resigns, thats what happened in one job i worked at.

    Oh and if they want shut of somebody, Tupeing is a good way to do it.

    Premier Icon garage-dweller
    Subscriber

    deleted as mostly duplication but For clarity ‘tupeing’ is not a process for getting an individual(s) out it is a way of protecting those transferred from losing their employment terms and length of service.

    The fact a tupe (business) transfer May be followed by redundancies is the main reason the regs exist.

    Premier Icon ourmaninthenorth
    Subscriber

    As above, TUPE is just (European created) law to protect certain employment rights in certain situations. It can’t be stopped by the organisations involved (ie it’s automatic), although affected employees can opt out (with associated termination of employment). The transferring and transferee organisations will have agreed in their contract who bears employment claims and redundancy liability.

    As part of the consultation process she may be offered legal advice.

    None if this has any bearing on whether redundancy may affect any individual transferring employees after transfer. All that may happen is that if the redundancy is fairly soon after the transfer then existing employment rights probably have to be maintained (hence organisations apportioning liability between themselves). Once harmonisation has taken place, then this may change.

    TBH though I’ve been TUPE’d once lip service was paid to our rights and the process as it was the merger of two massive law firms…. 😯

    Premier Icon Speshpaul
    Subscriber

    i’ve been Tupe’d out of one big company in to a small company but working for the original big company before being Tupe’d back in to the original big company again.
    Lost out each time, mainly because Tupe doesn’t protect pensions.

    but bottom line if your new employer wants to move/get rid of/completely change your role etc, they can but will use the terms and conditions from your old employer to do so.
    The real advantage is length of service, if you did 20 years in the old company and 1 in the new, thats 21 years of service to be paid against.

    Premier Icon MrGreedy
    Subscriber

    I’ve been TUPE’d twice in the last year, and in my case it basically meant the logo on the letterhead changed but I was still doing the same job at the same desk. Obviously it’s not always that simple, but if there are going to be redundancies at some point in a reorganisation it should be made clear at the outset. From the employer’s point of view, why go to the expense and effort of transferring a load of staff if you’re going to have to do a whole load more work to go through a redundancy process immediately afterwards?

    From an employee’s POV, the main thing you need to be aware of is that declining the offer to TUPE to a new post is effectively treated as a resignation so waiving your rights to any kind of compensation.

    Junkyard
    Member

    Been TUPED about 4 times and Union repped on 3 of those

    Once harmonisation has taken place, then this may change

    They are not allowed to harmonise just for the sake of it they also need an ETO to affect any change. Lawyers ignoring/abusing/maipulating the law is nothing new though. Only case i knew of their [ one we transferred to] terms were better so it was bit of a new brainer. Never been harmonised even after 3 years.

    Tupe doesn’t protect pensions.

    They have to be considered broadly similar. Ie if I am on a final salary pension they cannot move to me one that is not but they can use another type and I may , initially,loose benefits that say took time in the pension to get – in service death or similar. They cannot give no pension or a vastly inferior one as that is a change to your T & C of employment and a resigning matter and unfair dismissal

    but bottom line if your new employer wants to move/get rid of/completely change your role etc, they can but will use the terms and conditions from your old employer to do so.

    they can try but its unlikely and hard to do without an ETO

    Much depends on what the organisation really want to do but it is not , as some seem to think, the case that they can do as they please.

    Its not the case that they are safe either

    Mail me if you want specific advice as i would need to know info you wont give out on here.

    NB TUPE regs change on the 31 of this month when are they TUPE’d?

    Premier Icon Speshpaul
    Subscriber

    “They have to be considered broadly similar. Ie if I am on a final salary pension they cannot move to me one that is not “
    Really, we couldn’t fine a union rep/lawyer to back that one.

    Premier Icon Kryton57
    Subscriber

    NB TUPE regs change on the 31 of this month when are they TUPE’d?

    Current employment ends 31/3 although new employer is already in place/known. I didn’t know that – what’s the changes?

    johnners
    Member

    “They have to be considered broadly similar. Ie if I am on a final salary pension they cannot move to me one that is not “
    Really, we couldn’t fine a union rep/lawyer to back that one.

    Agree with Speshpaul on that one, I think the wording when I was TUPE’d was “broadly comparable”, so a Final Salary pension could be replaced by a defined contribution one if the expected benefits were calculated to be similar as at time of comparison. Luckily I didn’t have to worry too much about it because I was made redundant a couple of years after transfer!

    Big Dave
    Member

    I was TUPE’d across to my last employer a few years ago. As others have said you are protected in terms of length of service and notice period but pensions are not really covered all that well by it. Under the laws regarding TUPE you can technically only be made redundant if the company you are moving to can demonstrate valid economic, operational or technical reasons. I’d advise the OP’s wife to be sharp and alert to any changes the new employer makes, or tries to make, to the job once she has been transferred over. Tell her, and those being transferred across with her, to work together on questioning any changes. If they try to come up with any justifications for redundancies in the first month or so don’t be afraid to raise hell and challenge them.

    Another thing to look out for is making sure the term of service is kept continuous. When I was TUPE’d a couple of years ago one of my managers (also being transferred to the new employer) was canny enough, and belligerent enough, to make sure we started at the new company as soon as we left our old employers. Our new employers only really wanted the contract and not those of us who came with it and were quite prepared to not take us on until a couple of days later which would have broken our continuous service.

    The OPs wife will also be able to stay on her original T&Cs. Doing so meant that my eventual redundancy pay out was much higher than it would have been under the new companies contract of employment so it is wise to get the new company to sweat a bit and demonstrate what the advantages are of making a contract change if it is offered.

    I guess the main message is to be cynical about anything offered by the new employer. If Mrs K is offered any changes by her new employers make absolutely sure it will be financially worth her while to accept them. When I was TUPE’d a couple of years ago I was told by one of my managers to start working on a plan B in case it all went pear shaped and sorry to sound negative but anyone facing TUPE should start doing the same. Good luck with it all and stay alert.

    jaymoid
    Member

    Some good advice above, the only thing I can add is that the TUPE terms from her old job will only be protected for 2 years (although this may be extended during the contract negotiations).

    So for example:
    If the new company has different redundancy terms, e.g. only pay statutory redundancy pay, when the old company paid a month for every year or similar… the new company could make you redundant after two years and your 20 years terms of service would mean nothing and you would get statutory redundancy pay only.

    Also it’s worth noting that discretionary items in your old company, are not covered under TUPE, one of the biggies is bonuses. They might remove it, or say you will get a bonus, but then not pay it, as it’s discretionary.

    I got TUPE’d out, and to cut a long story short, it sucks, because the two points above are a reality, plus there were redundancies less than a year in.

    Our terms and conditions are protected for three years, I won’t be staying that long.

    ACAS is a good source of information for this stuff.

    Junkyard
    Member

    Agree with Speshpaul on that one, I think the wording when I was TUPE’d was “broadly comparable”, so a Final Salary pension could be replaced by a defined contribution one if the expected benefits were calculated to be similar as at time of comparison. Luckily I didn’t have to worry too much about it because I was made redundant a couple of years after transfer!

    You have just said what I said – ie they had to be broadly similar – Having just googled to check they only apply to final salary type schemes and this is all I have dealt with.

    he only thing I can add is that the TUPE terms from her old job will only be protected for 2 years

    There is no time limit to TUPE. Its fair to say that over time slow harmonisation will occur but it never stops applying.

    he new company could make you redundant after two years and your 20 years terms of service would mean nothing and you would get statutory redundancy pay only.

    That is exactly what they cannot do as you are employed on your current T & C and would clearly win any case in a court of law.

    Our terms and conditions are protected for three years

    No offence but you said two above and now three – I dont think you have fully grasped TUPE – to be fair no one has as it is very complicated with a lot of if and buts.

    FWIW redundancy can happen as they can in any organisation.

    jaymoid
    Member

    Thanks Junkyard, no offence taken. I was under the impression that TUPE has to last a minimum of 2 years. In the instance of the TUPE I was part of, our previous terms and conditions were negotiated to stay for 3 years, rather than the 2. So I was stating that ours were 3, rather than the (what I thought was the statutory minimum) 2.

    So is TUPE forever – or is it that the length of the protected terms under TUPE is negotiated during the process on a case by case basis?

    That is exactly what they cannot do as you are employed on your current T & C and would clearly win any case in a court of law.

    I have witnessed this happen last August, the group of employees got TUPE’d out with their T&Cs protected for two years, they (my current company) waited until after they had worked for them for 2 years and made about 15 people redundant, all getting little more than statutory redundancy pay. 🙁 Are you saying this could have been avoided?

    jaymoid
    Member

    This is taken from the document that was produced as part of my TUPE:

    For the first 3 years after the transfer date we are maintaining the [OLD ACE COMPANY] current redundancy terms (this would apply for any employees who leave [NEW SHIT COMPANY] through compulsory redundancy before 1st August 2015). After this date, we would pay redundancy pay in line with [NEW SHIT COMPANY] practice at the time. Historically, [NEW SHIT COMPANY] redundancy payments have been above statutory requirements. The 3 year proposal remains valid if employee continues to work with [NEW SHIT COMPANY] in the UK even if this is under a different assignment. If employee is relocated within [NEW SHIT COMPANY] to another country, then this term will no longer apply.

    Junkyard
    Member

    So is TUPE forever – or is it that the length of the protected terms under TUPE is negotiated during the process on a case by case basis?

    My understanding is that it is not time limited but it is accepted that it will come to an end ie – no one really knows and a case could be brought at any time. The longer since the transfer the less likely the claim will be upheld. 2-5 years seems the norm depending on organisation but some never do.

    Are you saying this could have been avoided?

    I am saying i would have taken them to court for breaching my T & C as I did not accept the T & C which were clearly inferior to the contract I accepted.
    I think its a messy one there as technically you may need to resign and then claim constructive dismissal if you worked for say 1 month with them then you are deemed to have accepted them. This is th eproblem you tend to need to resign then sue.

    TUPE has no time reference and they still need an ETO reason to change and harmonisation is not good enough and it is stated as such in the regs

    In the example directly above if i was relocated i would say my CURRENT T & C as laid out in my contract still apply assuming these are favourable.
    I still have these conversations at work as I get Xmas holidays as T & C and the “parent company” dont. As it is all done online it auto gives you these dates and removes it as leave when it SHOULD not be taken as per my T & C. they live with it as I also have to work 1 hour more per week than their T & C. I wont change as I know these ones inside out as I was the rep and the new one is a 250 page booklet i have little interest in memorising.
    IME there was little change tbh but time is running out.

    IN a nutshell its reasonable to assume that you will get at least 2 years as is and that over time there will be changes. It is most unlikely that these terms will be anything other than favourable for the company and unfavourable for you – ie they wont change if you redundancy or sick pay is worse than theirs – well they might but they would have done so immediately IME.

    I am largely public sector type stuff though so employer attitude may be nicer/more benign than industry

    johnners
    Member

    You have just said what I said

    Well I hope not Junkyard, since you said

    if I am on a final salary pension they cannot move to me one that is not but they can use another type

    which didn’t make much sense to me. I said I don’t think the new employer has any obligation to provide a Final Salary scheme.

    jaymoid
    Member

    Thanks Junkyard, that’s really interesting. I wish I could go back in time and advise those guys that went to really look into it, as the new terms for redundancy were so much worse than their old ones.

    I have been struggling to find why I have in my head that 2 year figure, I can’t seem to find it online. I think it could have been from the HR department at the time :S

    Looking through the rest of the doc, there isn’t much else that has a hard 3 year limit on it like the redundancy terms. I know I won’t be there for three years, but I’m wondering if now I have worked in the new shit company for over a year I have accepted that the redundancy terms will change at the three year mark. I think I’ll look into this.

    Junkyard
    Member

    I doubt you have have as they have nothing signed from you and they have not implemented it yet. the issue is when the try to implement it.
    the fact they told you is not good enough as you cannot resign becaus eof what they will do in 2 years time

    I suspect they know this and will claim you have known for x years but i honestly dont know if it would be accepted [ by a court] that you accepted this as you have signed nothing and of course you verbally explained your objection to this when it was first given and they assured you it was just a proposal 😉

    TUPE is just a mess IMHO and should clearly state what happens tbh
    It is open to interpretation IME

Viewing 23 posts - 1 through 23 (of 23 total)

The topic ‘TUPE and redundancy.’ is closed to new replies.