Approaching an employer outside of TUPE process
Discussion
I'm currently involved in a TUPE process which quite honestly has been utterly messed up by our HR department meaning that with 3 weeks to go before the transfer I still haven't received a measures letter or even met with the new employer.
A meeting has finally been scheduled for next week leaving just 2 weeks to complete the process however this is dependant on the measures letter coming through which for various reasons I don't think is going to happen so potentially my first meeting with the new employer will be a week before the transfer.
My company now looks like a right bunch of idiots for messing this up and I'm concerned this is reflecting on myself and my colleagues. I know who is leading the TUPE process at the new employer and was wondering whether it would be advisable to contact them informally via Linkedin just to express disappointment at the way the process has gone and maybe set up a meeting outside of our HR process who seem to be struggling to do anything right.
A meeting has finally been scheduled for next week leaving just 2 weeks to complete the process however this is dependant on the measures letter coming through which for various reasons I don't think is going to happen so potentially my first meeting with the new employer will be a week before the transfer.
My company now looks like a right bunch of idiots for messing this up and I'm concerned this is reflecting on myself and my colleagues. I know who is leading the TUPE process at the new employer and was wondering whether it would be advisable to contact them informally via Linkedin just to express disappointment at the way the process has gone and maybe set up a meeting outside of our HR process who seem to be struggling to do anything right.
When you say you haven’t had the measures letter, do you mean you have not been told what the proposed measures are or that you have not had the letter confirming these. It is normal to getting the letter at or very near to the transfer date as this confirms what has been consulted on, to give it sooner would suggest that consultation was concluded when this normally continues up until transfer.
It is also common not to meet the new employer until close to or indeed at transfer. I always like to involve them hands-on before transfer but sometimes they are not keen for a number of reasons e.g. if the transfer is subject to a complex wider contract that has not been finalised.
If you, or your employee representatives, have not been told what the proposed measures are before the transfer then clearly proper consultation has not taken place (although given there is no time stipulated for this it could still commence prior to consultation, especially if the measures are minimal). You have legal remedy if you don’t like what happens to your terms and conditions and consultation has not taken place but this is only limited compensation not returning you to your previous t&cs.
I would suggest not to contact them directly, but it’s your choice. If I was the reciving employer I would feel very uncomfortable if a transferring employee contacted me. You will get to the know the measures by or shortly after transfer and will have plenty of time to get to know them through the normal process after transfer. Do you really want to be the one to make them feel awkward, especialy as it sounds as though your beef is with your current employer not the new one?
It is also common not to meet the new employer until close to or indeed at transfer. I always like to involve them hands-on before transfer but sometimes they are not keen for a number of reasons e.g. if the transfer is subject to a complex wider contract that has not been finalised.
If you, or your employee representatives, have not been told what the proposed measures are before the transfer then clearly proper consultation has not taken place (although given there is no time stipulated for this it could still commence prior to consultation, especially if the measures are minimal). You have legal remedy if you don’t like what happens to your terms and conditions and consultation has not taken place but this is only limited compensation not returning you to your previous t&cs.
I would suggest not to contact them directly, but it’s your choice. If I was the reciving employer I would feel very uncomfortable if a transferring employee contacted me. You will get to the know the measures by or shortly after transfer and will have plenty of time to get to know them through the normal process after transfer. Do you really want to be the one to make them feel awkward, especialy as it sounds as though your beef is with your current employer not the new one?
We were told the measures letter would be at the start of the process and we were promised it several weeks ago but it hasn't happened because our side haven't provided all the ELI data that has been requested. Our HR won't allow us to meet the employer until we've received the measures letter but from our point of view it would be nice to meet them and get a feel for who they are and what a future relationship might be like.
It's frustrating as there are several other companies also transfering staff and they have all had meetings and are ploughing on, we seem to be getting left behind. From what we have been told we should have at least 3 meetings with them and it seems it's all going to happen in the last week.
I agree that contacting their HR would be a bad idea so I won't be doing it but having just had another completely pointless and frustrating conference call with our HR it seemed like a good idea at the time. Thanks for the input.
It's frustrating as there are several other companies also transfering staff and they have all had meetings and are ploughing on, we seem to be getting left behind. From what we have been told we should have at least 3 meetings with them and it seems it's all going to happen in the last week.
I agree that contacting their HR would be a bad idea so I won't be doing it but having just had another completely pointless and frustrating conference call with our HR it seemed like a good idea at the time. Thanks for the input.
Edited by jurbie on Tuesday 26th August 16:58
You normally get the proposed measures at the start of the consultation process and the formal measures letter confirming the impact of these on you personally at the end. As per the above, there is no stipulated time set for TUPE consultation. However, this has to be meaningful – what is meaningful depends on what is proposed. If the proposals are, for example, everything remains the same apart from you now get 2 extra days holiday and membership of a profit share then concluding consultation in a couple of days is probably meaningful. On the other hand, if the proposed measures are large changes to your terms and conditions then consultation would normally take a while longer and several meetings.
I suggest you wait and see what happens, if the measures are minimal or even positive changes (and I have seen that) you have little to complain about other than that you were not consulted with. A lawyer will probably disagree with me on this point but when the remedy is only a maximum of 3 months pay for failure to consult I would question is it worth it especially as a legal claim could have you marked as a trouble maker by your new employer. If on the other hand you find that you have lost out on both terms and conditions & consultation then consider taking proper advice.
Remember, the employer is not obliged to consult with you individually it is with your union or elected employee representatives. If you don’t have these then it would suggest you have a failure to consult situation unless you are a very small group when individual consultation with everyone is generally accepted to satisfy the collective consultation requirements (but is open to challenge).
I suggest you wait and see what happens, if the measures are minimal or even positive changes (and I have seen that) you have little to complain about other than that you were not consulted with. A lawyer will probably disagree with me on this point but when the remedy is only a maximum of 3 months pay for failure to consult I would question is it worth it especially as a legal claim could have you marked as a trouble maker by your new employer. If on the other hand you find that you have lost out on both terms and conditions & consultation then consider taking proper advice.
Remember, the employer is not obliged to consult with you individually it is with your union or elected employee representatives. If you don’t have these then it would suggest you have a failure to consult situation unless you are a very small group when individual consultation with everyone is generally accepted to satisfy the collective consultation requirements (but is open to challenge).
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