Tupe legislation

[StottyZr]

I'm working for a firm at the moment that have always offered good redundancy packages. It looks like I may be Tupe'd, can they push me across to the overtaking company then after 3months make me redundant on their terms? Redundancy is not specified in my contract.

[scirocco265]

If youu are TUPE-ed across then your existing T&Cs are protected. If, however, there isn't a Redundancy Policy/Procedure at your existing employer, then the statutory minimums would apply (re: timescales, pay etc).

Bit odd - if you are entitled to the minimums (probably) as ti is, why would you worry about getting the stat min/enhanced from another employer?

[anonymous-user]

A dismissal connected to a transfer is automatically unfair unless for an economic, technical or organisational reason entailing a change in the work force. As noted above, your existing terms must be honoured by the new employer after a transfer of undertaking.

[StottyZr]

scirocco265 said:

Bit odd - if you are entitled to the minimums (probably) as ti is, why would you worry about getting the stat min/enhanced from another employer?

Contractually my entitlement is statutory but they have always offered out month/year*0.9, which is between 3 and 4 times as generous as the statutory.

I'm worried about being on for a ~£8000 payout, getting Tupe'd then being made redundnat (apparently this is how the overtaking company has worked in the past) and being offered £2000.

I wouldn't be best pleased.

[StottyZr]

Breadvan72 said:

A dismissal connected to a transfer is automatically unfair unless for an economic, technical or organisational reason entailing a change in the work force.

Very true, but the overtaking company would be taking on ~100 employees for IT support across a few sites. I don't think it would be unexpected for a restructure and jobs to be cut, bearing in mind this is all driven through cost savings.

[anonymous-user]

You would have to show that your contract incorporates enhanced redundancy by virtue of custom and practice.

[StottyZr]

Now this is the arguement. Whos right? Breadvan or Tonker.

I'm currently in debate with a colleague over this, he agrees with Tonker, I'd agree with Breadvan.

[anonymous-user]

I didn't say that you could prove the point, only that you would have to assert it. You would need evidence of consistent behaviour by the employer in previous redundancies. The argument might if nothing else enhance your bargaining position.

[StottyZr]

Right, its all a bit grey then chaps.

It would be very easy to prove the "previous" employer always offered this redundancy, even now in other teams that have been made outsourced redundancy was offered at the good rate it always has been.

Would it be correct to say, in the real world, if 6months after Tupe my services wern't required, they would most likely offer an elevated level of redundancy, but not that of my previous employment?

[StottyZr]

Just ran the figures through the government redundnacy calculator. Also turns out, because I'm 22 I get royaly fked over.

Due £860 because I'm 22, if I were 28 with the same wage and time worked for the firm I'd be entitled to £1720.

Lovely.

[scirocco265]

StottyZr said:

Contractually my entitlement is statutory but they have always offered out month/year*0.9, which is between 3 and 4 times as generous as the statutory.

I'm worried about being on for a ~£8000 payout, getting Tupe'd then being made redundnat (apparently this is how the overtaking company has worked in the past) and being offered £2000.

I wouldn't be best pleased.

If you're TUPE-ed across then your existing T&Cs are protected. How do you know what previous individuals have been offered/received?

[sastanack]

Ah, seeing as someone else has started the tupe topic I have a question of my own

I started a new job on the 22nd October. I had two interviews, accepted the position and handed in my month notice, so didn't start until four and a bit weeks later after some time off inbetween.

It was announced to everyone the week before I started that the owners had sold part of the company, the international side that my work would cover. The contract I had already signed was changed from one to the other and on my first day the managers had a chat and said that although it'd been sold it would take a few months to refinance, they'd probably want to keep some of us on for international stuff etc - don't worry too much.

On Friday we were told the company they sold to are merging it with someone else they already own and currently outsource a lot of functions to India. Including mine.

Am I buggered here?

[anonymous-user]

You might be, I'm afraid. That is very bad luck. Has your previous employer filled your old post?

[StottyZr]

scirocco265 said:

StottyZr said:

Contractually my entitlement is statutory but they have always offered out month/year*0.9, which is between 3 and 4 times as generous as the statutory.

I'm worried about being on for a ~£8000 payout, getting Tupe'd then being made redundnat (apparently this is how the overtaking company has worked in the past) and being offered £2000.

I wouldn't be best pleased.

If you're TUPE-ed across then your existing T&Cs are protected. How do you know what previous individuals have been offered/received?

Its very well known and has always been that way. Just now a big team has been Tupe'd, they were offered VR with these terms. Its common knowledge tbh!

[big_boz]

StottyZr said:

Contractually my entitlement is statutory but they have always offered out month/year*0.9, which is between 3 and 4 times as generous as the statutory.

I'm worried about being on for a ~£8000 payout, getting Tupe'd then being made redundnat (apparently this is how the overtaking company has worked in the past) and being offered £2000.

I wouldn't be best pleased.

You are on a bit of a sticky wicket here, as has been said the TUPE protects your contractual rights and length of service based on your current contract, now you have said that contractually you get stat, but that your current employer "always offered out month/year*0.9", you may be able to prove that this is the case as such there is then a legal precedence and as such this would apply, but having been through this situation twice, be very careful and check that the offered EXACTLY the same thing and that you can prove it, if they offered 0.89 then 0.9 then 0.91 for instance then there is no precedence.

When i say prove it you would need to be able to provide information in the public domain that this was the pay out, if your colleagues who have received this payout also had a confidentiality clause built into their redundancy/compromise agreements than you can not prove the enhanced payment and as such you can not prove precedence, unless your HR team are willing to provide the detail about other peoples pay outs, which is unlikely.

At the end of the day its almost irrelevant though as you cant choose to be made redundant by your current employer if you get TUPE'd across and then you get made redundant, if you think you have been miss treated be aware that if you were to decide to progress to court based on unfair dismissal that the award from the court would only stretch to lost earnings for a 12 month period, so if you left on Friday via redundancy then had another job the following Monday on the same salary you wouldn't get anything awarded other than legal fees so no money on your pocket, if you earn a bit less, they will only cover the difference between salaries and so forth.

Usefull and not a racist

[StottyZr]

big_boz said:

You are on a bit of a sticky wicket here, as has been said the TUPE protects your contractual rights and length of service based on your current contract, now you have said that contractually you get stat, but that your current employer "always offered out month/year*0.9", you may be able to prove that this is the case as such there is then a legal precedence and as such this would apply, but having been through this situation twice, be very careful and check that the offered EXACTLY the same thing and that you can prove it, if they offered 0.89 then 0.9 then 0.91 for instance then there is no precedence.

When i say prove it you would need to be able to provide information in the public domain that this was the pay out, if your colleagues who have received this payout also had a confidentiality clause built into their redundancy/compromise agreements than you can not prove the enhanced payment and as such you can not prove precedence, unless your HR team are willing to provide the detail about other peoples pay outs, which is unlikely.

At the end of the day its almost irrelevant though as you cant choose to be made redundant by your current employer if you get TUPE'd across and then you get made redundant, if you think you have been miss treated be aware that if you were to decide to progress to court based on unfair dismissal that the award from the court would only stretch to lost earnings for a 12 month period, so if you left on Friday via redundancy then had another job the following Monday on the same salary you wouldn't get anything awarded other than legal fees so no money on your pocket, if you earn a bit less, they will only cover the difference between salaries and so forth.

Usefull and not a racist

Sounds like a bit of bad situation for me, it looks like they have the potential to screw me over. Not saying they will, but from my understanding, nothing is black and white and TUPE followed by a low payout it possible.

Thanks for the useful info though! And you're right, not racist, I am watching you though!

[sastanack]

Breadvan72 said:

You might be, I'm afraid. That is very bad luck. Has your previous employer filled your old post?

They have, and I don't want to go back to that job. Pants.

I know I wouldn't get redundancy money if it happens Jan/Feb as we expect, but I've been promised my study fees will be taken care of (would have been paid on completion of the course). Think I'll hang fire until then.

thanks anywho

[anonymous-user]

StottyZr said:

big_boz said:

You are on a bit of a sticky wicket here, as has been said the TUPE protects your contractual rights and length of service based on your current contract, now you have said that contractually you get stat, but that your current employer "always offered out month/year*0.9", you may be able to prove that this is the case as such there is then a legal precedence and as such this would apply, but having been through this situation twice, be very careful and check that the offered EXACTLY the same thing and that you can prove it, if they offered 0.89 then 0.9 then 0.91 for instance then there is no precedence.

When i say prove it you would need to be able to provide information in the public domain that this was the pay out, if your colleagues who have received this payout also had a confidentiality clause built into their redundancy/compromise agreements than you can not prove the enhanced payment and as such you can not prove precedence, unless your HR team are willing to provide the detail about other peoples pay outs, which is unlikely.

At the end of the day its almost irrelevant though as you cant choose to be made redundant by your current employer if you get TUPE'd across and then you get made redundant, if you think you have been miss treated be aware that if you were to decide to progress to court based on unfair dismissal that the award from the court would only stretch to lost earnings for a 12 month period, so if you left on Friday via redundancy then had another job the following Monday on the same salary you wouldn't get anything awarded other than legal fees so no money on your pocket, if you earn a bit less, they will only cover the difference between salaries and so forth.

Sounds like a bit of bad situation for me, it looks like they have the potential to screw me over. Not saying they will, but from my understanding, nothing is black and white and TUPE followed by a low payout it possible.

Thanks for the useful info though! And you're right, not racist, I am watching you though!

Only part of that advice is accurate. For example, you would be entitled in a tribunal claim to obtain disclosure of redundancy payments made to other employees if your assertion is that it was standard for the employer to pay enhanced redundancy payments. The employer could not rely on any confidentiality agreement with another employee to resist such disclosure.

In addition, loss would not be capped at 12 months earnings, but would be subject to a statutory maximum, which might amount to more or less than 12 months earnings depending on your salary.

[big_boz]

OK Breadvan, I can see that you are a barrister, so If this is all wrong, please feel free to correct me......

Breadvan72 said:

Only part of that advice is accurate. For example, you would be entitled in a tribunal claim to obtain disclosure of redundancy payments made to other employees if your assertion is that it was standard for the employer to pay enhanced redundancy payments. The employer could not rely on any confidentiality agreement with another employee to resist such disclosure.

Very true, but if through redundancy action where you are offered a pay out and choose not to accept it, you (as the employee) would be liable to cover the cost of the legal fees to fight your corner until such time as the action is complete, so would the OP want to get into this for the sake of the difference between £8k and £2k which correct me if i am wrong is the pre and post TUPE expected payout amounts in the case of redundancy (which in itself isn't certain)? Having considered the industrial tribunal route myself in August of this year (albeit with a view to unfair dismissal), Blacks solicitors of Leeds advised me that i would be looking at something in the region of a minimum £10k costs to take the action to tribunal and there would be no guarantee that to your next point.....

Breadvan72 said:

In addition, loss would not be capped at 12 months earnings, but would be subject to a statutory maximum, which might amount to more or less than 12 months earnings depending on your salary.

There is indeed no cap, but the rule of thumb (which i also had explained to me by several other briefs) is the 12 months loss of earnings as this is considered to be "fair" to the employee, and it would be unlikely that the award would be substantially greater than this unless there was grounds for something more serious such as some sort of discrimination.

Blacks handle a number of my legal affairs and are fully aware that i could have fronted the £10k to take the action relevant to me further, but advised me that although i had a strong case for unfair dismissal, it would be unlikely that I would get much more than i had been offered.

So yes on Paper breadvan you are correct, but in reality the system is set up to protect both the employee and the employer, its a crappy for anyone going through a situation like this, but for the numbers and specific situation the we are talking about in this instance i gave my opinion of the OP's options.

OP, I would suggest that if you go and speak to a brief who specialises in employment law now, that they will be able to give you a full run down of where you stand. If at some point post TUPE the situation arises where you are made redundant at least you will be able to engage the solicitor from the off.

Edited by big_boz on Wednesday 14th November 09:42