Anyone here know TUPE law?

[V-Spec]

Everything at work is falling to bits, was wondering if any kind soul on here might have some guidance, I'm considering seeing a solicitor but I'm pretty sure of my position..

Basically, the company I work for in the City is selling off a portion of it's network division to another company, last week we had an announcement of the deal, followed by a letter addressed to me, which says on the 15th of April my employment will transfer to the other company. However I can opt-out - in which case my employment will cease on the transfer date (15th April)

Now the strange part is that they then issued an email saying that the letter was incorrect and I 'may or may not transfer' on the date, meaning an undefined set of people will transfer and an undefined set will remain to work on other projects, I didn't receive a letter addressed to me specifically stating I was going to be transferred or retained.

Then to complicate matters, they decide they *may* want to keep me to build a next gen core network, but nothing has been put on the table, nothing formal has been arranged, and the clock is ticking down to the 15th.


In a nutshell I can't stand the place, it was just a massive mistake going there and I want to opt-out, however I'm unsure if I can based on the other discussions going on - do these matter? The way I see it, I have a legal document addressed to me saying I transfer on the 15th... so surely I can just opt-out?

Another reason to opt out, is that I passed my CCIE lab exam in Brussels last week and if I resigned i'd technically owe the company £4k in training and exam fees.... if I opt out the law says it gets written off.....

Appreciate this isn't exactly GD material lol, but other people i've asked don't have a scooby

 

[mattyg]

Of course you can opt out.
However Opting out is the same as resigning.

It may be worth waiting as this new company may be better.

As its treated the same as resigning I would just wait and see what the new CO is like before making a decision

I answered on another thread about TUPE and I'll hold my hands up that I didnt know enough about it then.

However now I'm a little more in the know. I've been asked to take over a contract and t TUPE approx 25 of their staff. So I'm trying to take on as much knowledge about TUPE as possible.

I've just employed an HR/Employment Law specialist to aid me in the transfer.

The basic jist of TUPE is the only thing your supposed to notice is that you get paid by a different company. Under TUPE rules they are not allowed to change your employment contract in a negative way.

 

[V-Spec]

Thanks,

The only bit that's ambiguous is that they're saying they want to keep me verbally but I've not had anything in writing... By my thinking if they say they want to keep me - they've got to justify why, they can't just cherry pick and transfer other people, especially when the work we do is all the same..

Thanks anyway

 

[mattyg]

Depends on what roles are being outsourced. They don't have to TUPE every staff member over.

It should only be your contract that is being taken over. Everything IN your contract will stay the same (unless they better it).

It just like getting a new boss. It shouldn't really affect you.

IF they are going to TUPE you across they have to consult with you but if they aren't they they don't.

It's an absolute minefield but its their to Protect the Employee's rights. So in effect its on YOUR side.

How long have you been there. You never know they may have to TUPE you then they may make you redundant

 

[V-Spec]

Depends on what roles are being outsourced. They don't have to TUPE every staff member over.

The thing is, they've given me a letter personally addressed to me saying i'll transfer on the 15th.. surely that says all I need to know?

 

[mattyg]

Thanks,

The only bit that's ambiguous is that they're saying they want to keep me verbally but I've not had anything in writing... By my thinking if they say they want to keep me - they've got to justify why, they can't just cherry pick and transfer other people, especially when the work we do is all the same..

Thanks anyway

Yes they can.

However if your Cherry picked then thats a sign they want to keep you. Unless you've only been there a short time then it may be a sign they are going to make your role redundant. however that opens up another can of worms. They have to make the redundancies fair. (no last in 1st out scenario)


I'd defo wait it out. You've got nothing to lose.

 

[V-Spec]

Yes they can.

However if your Cherry picked then thats a sign they want to keep you. Unless you've only been there a short time then it may be a sign they are going to make your role redundant. however that opens up another can of worms. They have to make the redundancies fair. (no last in 1st out scenario)

See, this makes no sense to me, because the letter I have says i'm going to transfer, with nothing else officially on the table, there's nothing stopping them from transferring me on the 15th surely?

I'd defo wait it out. You've got nothing to lose.

I've got another opportunity on the boil that's 100x better, and the place i'm at utterly utterly sucks.

 

[n3vrmind]

I believe that to some extent if you are working in a department and that department is outsourced you are automatically pegged for TUPE as part of the standard process

Then to save you from the TUPE process your current employer has the option of offering you a job in another department that is not being sold on, effectively an internal transfer that would be presented to you as a job offer with a new contract

Im no lawyer but this is how it went down when I was involved in TUPE a few years back, I was pegged to go but I pointed out that the new role was not an equivalent and was significantly worse in certain aspects, made a fuss about it and suggested the whole thing wasn't legal and then a couple of days later me and the few others in my situation all miraculously got job offers and stayed

 

[malfunkshun]

Yes they can.

However if your Cherry picked then thats a sign they want to keep you. Unless you've only been there a short time then it may be a sign they are going to make your role redundant. however that opens up another can of worms. They have to make the redundancies fair. (no last in 1st out scenario)


I'd defo wait it out. You've got nothing to lose.

Last in, first out for redundancy is an acceptable method of selection provided it doesn't cross over into an unfair selection (eg. age/sexual discrimination), which it usually doesn't.

As for TUPE you should get exactly identical terms from the new owners of the sold section of the business. When it comes to cherry picking, the deal to sell part of the company will have been required to include the original company owner supplying the buyer with full details of its employee liabilities before the deal is finalised, this would include identity so I cannot see how they have not yet got a final list.

 

[oldbag]

Does this help?
http://www.out-law.com/page-448

 

[malfunkshun]

Does this help?
http://www.out-law.com/page-448

Good page for employers
Judging by the OP there was no consultation? that being the case all the affected employees could make a case to a tribunal since consultation with affected employees is a requirement.
Also keep in mind that if you opt out your employment is immediately terminated when the transfer takes place and you lose any rights, continuity of service etc that would be maintained had you transfered. It is effectively treated as resignation.

 

[oldbag]

Good page for employers
Judging by the OP there was no consultation? that being the case all the affected employees could make a case to a tribunal since consultation with affected employees is a requirement.
Also keep in mind that if you opt out your employment is immediately terminated when the transfer takes place and you lose any rights, continuity of service etc that would be maintained had you transfered. It is effectively treated as resignation.

Yeah, thats what i saw from it.

 

[V-Spec]

Does this help?
http://www.out-law.com/page-448

Hi,

Yeah i've actually read that, but the 'uncertain nature' of my situation in a nutshell is like this:

Employer issues me a signed letter saying 'I'm going to be TUPE'd' then issues an email amendment saying 'you may be TUPE'd' but fails to provide any more detail, or further information on whether I personally am or aren't,

Can they actually do this? send out a signed document saying I definitely am, then partially refute it by email? (email not addressed personally to me, as part of a FAQ)

 

[dowie]

If I were you I'd definitely pony up for a reassuringly expensive solicitor... just that fact that you could be on the hook for 4k in training fees if you make one choice would make it worth it alone IMO... The fact that your employer seems to be handling this in a cluster**** manner would seem to indicate they are reasonably likely to do things that leave themselves exposed... send a copy of everything to a personal e-mail account, find a solicitor with a background in dealing with this sort of thing and find out what your options are.

 

[oldbag]

I would assume that the letter would hold more 'legal weight' than an email (signed and all), especially if you're not directly addressed in the email.

Therefore, i'd assume that i would be tupe'd unless i get a signed letter directly to myself, saying otherwise.

As to whether they can do this, I'm not qualified to say. I assume they would know themselves what they could and couldn't do in this process.

 

[malfunkshun]

Hi,

Yeah i've actually read that, but the 'uncertain nature' of my situation in a nutshell is like this:

Employer issues me a signed letter saying 'I'm going to be TUPE'd' then issues an email amendment saying 'you may be TUPE'd' but fails to provide any more detail, or further information on whether I personally am or aren't,

Can they actually do this? send out a signed document saying I definitely am, then partially refute it by email? (email not addressed personally to me, as part of a FAQ)

Well, they are required to have sent the buyer a list of employee liabilities not less than two weeks before the transfer. This would have included the names, personnel records etc of all employees affected. Now, they can make arrangements with the buyer to keep people that would ordinarily be transfered but it can be complicated (eg, they want to keep you but you would ordinarily be transfered, then they offer you a lump sum and/or a new contract with the old company as an incentive to opt out and not transfer). My concern is that well before now a group of employees reps (union or otherwise) should have been consulted about this. Failure to provide the list to the buyer would, potentially, have financial penalties for the seller, as would failing to consult with the employees (up to 91 days pay in the latter case iirc) should things progress badly enough.
So, short answer, they should have told those affected in no uncertain terms by now that they were transferring, and you should have been aware well prior to this as part of the consultation. My recommendation is to not opt out and take legal advice about the apparent (apparent because I can only assume that what you says is accurate...no offence) lack of consultation and potentially other breaches.

 

[V-Spec]

So, short answer, they should have told those affected in no uncertain terms by now that they were transferring, and you should have been aware well prior to this as part of the consultation. My recommendation is to not opt out and take legal advice about the apparent (apparent because I can only assume that what you says is accurate...no offence) lack of consultation and potentially other breaches.

Well yeah - we have been consulted, we had a big announcement, they've appointed 2x TUPE specialists, I had a letter saying I was being TUPE'd then they amended 'you're being transferred' to 'you may be transferred'

Then, they verbally talk about keeping me, and making a new position specially for me meanwhile I get nothing official from anyone, so the only possible definite position I can possibly be in, is that i'll be transferred (TUPE'd) to the new company, I have nothing official saying otherwise...

It's quite frustrating, because with that they've done - they've basically meant they can TUPE anyone or everyone by giving everybody letters, but then fallback to some weird 'inbetween' position by saying 'oh no, we'll keep you'

I'm gonna go phone a solicitor tomorrow.. thanks for your help guys

 

[Kimi]

I know quite a bit about the TUPE process having just gone through it myself, look here man, you really should go through with it. Ive got to be really quick, just started work but ill come back later. The power is with the people on this

The new company have to keep you on in exactly the same role, or one greater, they cannot make you a worse position, if they do, you can take them to the bank. They cant change you're contract in any way or form. They cant make you travel any more than you do now

Your current company dont have to transfer anyone but they can transfer everyone if they want, but obviously if it is a large percentage of the work they will have to because they wont be able to pay everyone off. New company usually end up making the staff redundant. Dont quit, hang in there and get your redundancy payoff.

Sorry i have to be brief

 

[memyselfandi]

Having been in a very similar position as the OP the worse thing he can do is just opt out of being TUPE'd. As has been said that is the equivalent of just resigning.

You can be TUPE'd, (and the other company may immediately put you into a redundancy process) ... dependent on your length of service that could give you a nice payout, or you can accept another position internally at your existing company. If you are going to get something else with your existing company then you need to get that pushed to be confirmed so you can be removed from the list of staff being transferred.

In my case I found out on the Friday lunchtime I had a new role internally (although this would require me to relocate) which I accepted. If I had not have done so I would have been TUPE'd to the other company and started on the following Monday (and immediately be put on consultancy for redundancy).