TUPE back to original employer....
Discussion
Hi All
I would appreciate advice, as have been unable find anything conclusive on the net!
A service carried out by my original employer was outsourced, and as a result I was TUPE'd across, about 3 years ago. Now the original employer would like to take the service back in-house, but this throws up a few concerns!
If it is even an option, it is likely that my existing employer will agree to a TUPE transfer back. However, I am now on substantially better terms, partly due to enhancements upon transfer and subsequent promotion. How would this work? I would like to continue with the work, so would not be against working for my original employer again, but confused as to whether TUPE would apply, and if so how my current terms might be protected (for example, I now get a bonus, but the original employer does not operate such a scheme)?
I acknowledge that specifics would need to be known for a definitive response, but would just appreciate anyone's thoughts/things to be cautious about.
Many thanks!
I would appreciate advice, as have been unable find anything conclusive on the net!
A service carried out by my original employer was outsourced, and as a result I was TUPE'd across, about 3 years ago. Now the original employer would like to take the service back in-house, but this throws up a few concerns!
If it is even an option, it is likely that my existing employer will agree to a TUPE transfer back. However, I am now on substantially better terms, partly due to enhancements upon transfer and subsequent promotion. How would this work? I would like to continue with the work, so would not be against working for my original employer again, but confused as to whether TUPE would apply, and if so how my current terms might be protected (for example, I now get a bonus, but the original employer does not operate such a scheme)?
I acknowledge that specifics would need to be known for a definitive response, but would just appreciate anyone's thoughts/things to be cautious about.
Many thanks!
Hi
The question here is are the buying the service back (is it a subsidiary they can acquire) from the outsource provider complete with people or are they ending their outsource agreement with your employers ?
If the former, then yes, as they are re-acquiring what they sold. So you can be TUPE'd back in.
If the latter, no, as you would then need to re-apply to them as a new employee and they can set whatever terms they wish for the roles they open.
The question here is are the buying the service back (is it a subsidiary they can acquire) from the outsource provider complete with people or are they ending their outsource agreement with your employers ?
If the former, then yes, as they are re-acquiring what they sold. So you can be TUPE'd back in.
If the latter, no, as you would then need to re-apply to them as a new employee and they can set whatever terms they wish for the roles they open.
IJWS15 said:
If TUPE applies then you transfer back to your old employer on your CURRENT employment terms.
What those terms used to be is irrelevant.
Agree, that is my understanding. Old employer could say "but we already have one of those" (your role, if they do) and make you redundant I guess, but based on what you've advised and assuming you are 50% or more (which seems to be the benchmark) engaged on this activity.What those terms used to be is irrelevant.
tribalsurfer said:
Believe standard TUPE rule is you stay on current T&C's unless better at new employer which you are stating they are not, so would assume your employment contract at present is what you would be when transfered back.
Thats presuming transferral, I read this more along the lines of:Company A outsources all process and people to Company B and OP is TUPE'd over, all good.
Company A now decides they want to do this stuff for themselves, they no longer have any direct relationship with the OP and he is an employee of Company B.
Company A terminates its outsource agreement with Company B, what Company B do with the OP is either re-assign him to a different client or make him redundant.
Company A advertises a role the same as or similar to the OPs current one, should he wish to apply he can but he has no additional rights than anyone else applying and Company A can structure (within reason) their contracts, the OP would also lose any continuity of employment benefits such as protections and enhanced holidays based on tenure and could in fact end up worse of than when he left Company A.
So unless Company A are buying back the service / people from Company B, the OP has no rights, Company A are just A N Other 3rd party potential employer regardless of the fact he has worked there before, he will just be a 'boomerang'.
So no TUPE protection when Company A decides it would like the same service to return inhouse? Is key to this how the service transfers back (I do not know this yet i.e. whether an amicable termination of the service contract, or otherwise)?
VERY informal discussions with Company A suggests that they currently think it likely that they would have to meet our current conditions (TUPE?). It is likely that Company B would like to move to me another client – no problem, but due location of head office I would rather still act/work for the current client.
Local Government if that makes a difference!
Thanks
VERY informal discussions with Company A suggests that they currently think it likely that they would have to meet our current conditions (TUPE?). It is likely that Company B would like to move to me another client – no problem, but due location of head office I would rather still act/work for the current client.
Local Government if that makes a difference!
Thanks
edc said:
TUPE can apply when a company insources or takes a service or contract back in-house. It all depends on the details and the terms on the deal. The OP doesn't post enough information to determine that.
Fully agree .. hence pointing out that not all scenarios are favorable to the OP. Lifes all fun and games ...dibblecorse said:
Hi
The question here is are the buying the service back (is it a subsidiary they can acquire) from the outsource provider complete with people or are they ending their outsource agreement with your employers ?
If the former, then yes, as they are re-acquiring what they sold. So you can be TUPE'd back in.
If the latter, no, as you would then need to re-apply to them as a new employee and they can set whatever terms they wish for the roles they open.
This post contains at least two legal errors and is a good example of bad advice.The question here is are the buying the service back (is it a subsidiary they can acquire) from the outsource provider complete with people or are they ending their outsource agreement with your employers ?
If the former, then yes, as they are re-acquiring what they sold. So you can be TUPE'd back in.
If the latter, no, as you would then need to re-apply to them as a new employee and they can set whatever terms they wish for the roles they open.
Breadvan72 said:
dibblecorse said:
Hi
The question here is are the buying the service back (is it a subsidiary they can acquire) from the outsource provider complete with people or are they ending their outsource agreement with your employers ?
If the former, then yes, as they are re-acquiring what they sold. So you can be TUPE'd back in.
If the latter, no, as you would then need to re-apply to them as a new employee and they can set whatever terms they wish for the roles they open.
This post contains at least two legal errors and is a good example of bad advice.The question here is are the buying the service back (is it a subsidiary they can acquire) from the outsource provider complete with people or are they ending their outsource agreement with your employers ?
If the former, then yes, as they are re-acquiring what they sold. So you can be TUPE'd back in.
If the latter, no, as you would then need to re-apply to them as a new employee and they can set whatever terms they wish for the roles they open.
You expressed conclusions on scenarios, saying if X then Tupe, if Y then not Tupe. That is giving advice. Advice that if given by a lawyer would be actionably negligent.
The suggestion that acquiring a subsidiary would be a Tupe transfer is wrong. Tupe applies to a transfer of a business not a change in share ownership of a company.
The suggestion that ending outsourcing and resuming direct provision is not a Tupe transfer is also wrong. The question is whether the undertaking that was carried on when the work was outsourced is still carrying on but now under direct management.
OP, ignore all advice on this thread and consult someone insured to give you advice. A job is too important a thing to trust to well meaning internet people who owe you no duty of care.
IAAL but IANYL.
The suggestion that acquiring a subsidiary would be a Tupe transfer is wrong. Tupe applies to a transfer of a business not a change in share ownership of a company.
The suggestion that ending outsourcing and resuming direct provision is not a Tupe transfer is also wrong. The question is whether the undertaking that was carried on when the work was outsourced is still carrying on but now under direct management.
OP, ignore all advice on this thread and consult someone insured to give you advice. A job is too important a thing to trust to well meaning internet people who owe you no duty of care.
IAAL but IANYL.
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