TUPE regulations - advice needed!
Discussion
I this week been made redundant from my job (HGV driver) as the company are outsourcing their carrier services.
I was offered TUPE with the company they are outsourcing to, but on a greatly reduced package. Fortunately, some wise PH'ers pointed out to me that the TUPE regulations stipulate a continuation of my existing terms and conditions of employment.
I really would appreciate clarification that all my existing terms of engagement have to be carried over to the new employer, ie, salary, hours, holiday, health cover, etc. I understand pension rights may be affected but this would not be an issue for me.
Also, I am concerned that once I moved over, could the new employer immediately force me to re-sign a new contract?
Thanks in advance!
Dico
I was offered TUPE with the company they are outsourcing to, but on a greatly reduced package. Fortunately, some wise PH'ers pointed out to me that the TUPE regulations stipulate a continuation of my existing terms and conditions of employment.
I really would appreciate clarification that all my existing terms of engagement have to be carried over to the new employer, ie, salary, hours, holiday, health cover, etc. I understand pension rights may be affected but this would not be an issue for me.
Also, I am concerned that once I moved over, could the new employer immediately force me to re-sign a new contract?
Thanks in advance!
Dico
Yes, all your T+Cs should be carried across - otherwise what's the point of tupe? It has a limited lifespan though, after either 1 or 2 years they can change your terms in the same way they can for any other employee. That is to say they can terminate you and offer you a job on alternative conditions for you to accept or not.
Why not just google TUPE?
Why not just google TUPE?
Hi, thanks for the reply.
My current employer was adamant that the new rate and conditions (including no more health cover)would apply so we assumed they were being upfront, but it would seem not.
I did Google TUPE but it was very comprehensive. 39 pages long.
My current employer was adamant that the new rate and conditions (including no more health cover)would apply so we assumed they were being upfront, but it would seem not.
I did Google TUPE but it was very comprehensive. 39 pages long.
Edited by Dico on Saturday 20th November 12:10
In short your terms and conditions should continue. That does not necessarily mean everything stays the same as some of the salary or benefits you may get may be non-contractual e.g Bupa, dental, extra holidays, shift allowance, overtime rates etc. if you are on a fixed basic salary then you should be paid exactly the same for doing the same work. Without knowing the details of your case from what you describe it looks like both companies acknowledge TUPE applies. As usual a lot depends on the wording of your T&Cs and potentially any historic custom and practice.
The basics of TUPE and the theory is often actually very simple but the difficulty is in the end employee getting the right result. Have they asked you to sign a compromise agreement to remain eligible for the 'enhanced redundancy' payment? If so, think about this as you may potentially waive all rights to a claim for unfair dismissal. If you feel strongly about it I would seek some further advice. I am not an employment solicitor but I have a legal education and have been involved in TUPE/mergers/acquisitions/contracting in or out etc for a fair few years now. On the face of it the situation does not feel right but just because there is some blame to apportion does not mean you should claim. You need to weigh up the value of the money being offered, the security in the new company, what outcome you actually want vs what is achievable, the time and effort you will have to put in to seeing a claim through.
The fact that they are paying redundancy is strange as the work is clearly not redundant. You should automatically transfer where TUPE applies and you wouldn't have much of a choice in it. From a commercial perspective why pay out redundancy when you don't need to? A possible scenario is that the in coming contractor simply doesn't want you guys and the redundancy payments have been factored into the costs. Again, this is often the case where service providers change as the reason for the change is often delivery/performance which is inherently linked to the people doing it. In blue-collar contract service environments you used to often see outgoing contractors shuffle their pack so they 'lose' all their long-term sick, poor performers and swap out the 'good' guys and place them on to other contracts.
The basics of TUPE and the theory is often actually very simple but the difficulty is in the end employee getting the right result. Have they asked you to sign a compromise agreement to remain eligible for the 'enhanced redundancy' payment? If so, think about this as you may potentially waive all rights to a claim for unfair dismissal. If you feel strongly about it I would seek some further advice. I am not an employment solicitor but I have a legal education and have been involved in TUPE/mergers/acquisitions/contracting in or out etc for a fair few years now. On the face of it the situation does not feel right but just because there is some blame to apportion does not mean you should claim. You need to weigh up the value of the money being offered, the security in the new company, what outcome you actually want vs what is achievable, the time and effort you will have to put in to seeing a claim through.
The fact that they are paying redundancy is strange as the work is clearly not redundant. You should automatically transfer where TUPE applies and you wouldn't have much of a choice in it. From a commercial perspective why pay out redundancy when you don't need to? A possible scenario is that the in coming contractor simply doesn't want you guys and the redundancy payments have been factored into the costs. Again, this is often the case where service providers change as the reason for the change is often delivery/performance which is inherently linked to the people doing it. In blue-collar contract service environments you used to often see outgoing contractors shuffle their pack so they 'lose' all their long-term sick, poor performers and swap out the 'good' guys and place them on to other contracts.
otherman said:
Yes, all your T+Cs should be carried across - otherwise what's the point of tupe? It has a limited lifespan though, after either 1 or 2 years they can change your terms in the same way they can for any other employee. That is to say they can terminate you and offer you a job on alternative conditions for you to accept or not.
Why not just google TUPE?
I was TUPEd over a year ago its open ended not 1/2 years. New company not happy with our pay rates T&Cs etc. They have tried (and failed) to give some of us 90 day notice to change to their contract, its not legal unless to carry on with your T&Cs would bring the company down (obviously they have to prove this). They will probably try other means to get you to sign over such as preventing you from doing overtime etc, thats what we have had. My advice if there are a few of you stick together thats what we did (we all refused overtime when they were desperate). Now they pretty much leave us alone. Why not just google TUPE?
Re reading your other thread confirms mu suspicions. The reason you have to see a solicitor to get the redundancy is because they are wrapping it up in a compromise agreement which itself is only valid having seen a solicitor.
I would take the agreement there and run the scenario by the solicitor. He can advise whether there is a potential claim or whether the value of any claim is covered by the payment.
I would take the agreement there and run the scenario by the solicitor. He can advise whether there is a potential claim or whether the value of any claim is covered by the payment.
anonymous said:
[redacted]
Hi Tonker. Yes, it is a very large American company. And I am an actual employee.edc said:
Re reading your other thread confirms mu suspicions. The reason you have to see a solicitor to get the redundancy is because they are wrapping it up in a compromise agreement which itself is only valid having seen a solicitor.
Hi and thanks again edc. Yes it is a compromise agreement we have been asked to sign. Should I see an employment solicitor ideally?It sounds like there are far too many risks in taking the TUPE route, and that I have no other choice but to take the redundancy. I do feel they have mislead me big time though.
Dico
Edited by Dico on Saturday 20th November 19:30
Theres only three of us, and the other two are not in a union either.
Absolute packet? Nope, they're doubling the statutary redundancy. Which after 7 years of employment isn't all that much. Enough to get me by for 3 months or so.
I'll certainly be asking the HR manager some more specific questions when I see him next week I collect the compromise agreement to take to the solicitor. And the solicitor too.
Work left a message for me today saying all my personal belongings had been removed from my cab and were ready for collection. I'm still an employee til the 31st December!!! My Mrs can't understand why I'm so peed off by this. Imagine your office desk and drawers being stripped bare of all your personal stuff!
Anyhow, I realy don't think I will take this much further with the company. I know full well I can find better paid work moving up from class 2 to class 1 work. Finding HGV work is easy. Finding the right kind of work/hours etc is a different matter.
Absolute packet? Nope, they're doubling the statutary redundancy. Which after 7 years of employment isn't all that much. Enough to get me by for 3 months or so.
I'll certainly be asking the HR manager some more specific questions when I see him next week I collect the compromise agreement to take to the solicitor. And the solicitor too.
Work left a message for me today saying all my personal belongings had been removed from my cab and were ready for collection. I'm still an employee til the 31st December!!! My Mrs can't understand why I'm so peed off by this. Imagine your office desk and drawers being stripped bare of all your personal stuff!
Anyhow, I realy don't think I will take this much further with the company. I know full well I can find better paid work moving up from class 2 to class 1 work. Finding HGV work is easy. Finding the right kind of work/hours etc is a different matter.
3 months pay for a compromise agreement sounds low. If possible get in front of a firm who has an employment law practice. As tonker says you need to do a timeline of all the relevant activities formal and informal. You might also want to check how much your company are prepared to pay for the solicitor. If the case as is appears here and they do their job right then they or you should be in a stronger position to negotiate upwards. I don't really like asking this but are you all White male?
Yes, all white males. I recall a figure of around £300(ish) for each of us as a maximum figure they are prepared to pay for a solicitor.
To be honest it was more like 5 months salary that was offered to me. The others had slightly more. One due to age (over 50) and the other having served 10 years.
We did ask if the HR manager if he could look into sponsoring us for training. One lad asked if they would pay for his class 1 license, me asking if they would pay towards an ADR (chemical) license. We figured we were pushing it there to be honest at the time, but now, hmm? He more or less told us not to hold our breath on that one.
They have arranged for all three of us to attend a recruitment centre to set up our CV's etc.
To be honest it was more like 5 months salary that was offered to me. The others had slightly more. One due to age (over 50) and the other having served 10 years.
We did ask if the HR manager if he could look into sponsoring us for training. One lad asked if they would pay for his class 1 license, me asking if they would pay towards an ADR (chemical) license. We figured we were pushing it there to be honest at the time, but now, hmm? He more or less told us not to hold our breath on that one.
They have arranged for all three of us to attend a recruitment centre to set up our CV's etc.
Dico said:
anonymous said:
[redacted]
One thing i will say is get them to give you a written reference on headed paper BEFORE signing the agreement, basically you get to write your own reference and they agree to it and thats what they will provide to anyone who asks for it.
See a solicitor, its well worth it. A good one will explain it all in very simple easy to understand language, certainly helped me out.
So to summarise.
Your current company has transferred part of their operations to another.
They must have consulted with someone before they did this (union or individuals).
They have offered you a compromise agreement (not redundancy) as the new company doesn't want to take on any old employees
You have a right to a job with the new company on your old contractual T&C's as you are not redundant (TUPE).
You must take legal advice before signing a Compromise Agreement and agree with your current company that they will be invoiced directly for this.
If you do TUPE across, the new company can make you redundant on your current terms, but it looks like the job is actually still required so would it could be difficult to do immediately. They would also have the option of assimilating you on to their employment contracts with some kind of compensation or inducement to transfer. If not and you refuse to sign their new contract you could resign and seek constructive dismissal or stay and go for breech of contract (not a place any of you want to be in).
It doesn't sound messed up to me, just seems they are trying to avoid the logistical & contractual issues involved in a TUPE transfer to the new company.
It also gives you an opportunity to negotiate on your compromise terms if you don't want to transfer. Gaining skill to improve your employment opportunities, so long as not ridiculously expensive would be a good angle to use. Try to get any additional money labelled as "outplacement support" (income tax-free) although unless your earning huge £ the £30k tax free redundancy won't be crossed by 2x Statutory.
Would the distance to your new job location be significantly different? this may affect your options.
Your current company has transferred part of their operations to another.
They must have consulted with someone before they did this (union or individuals).
They have offered you a compromise agreement (not redundancy) as the new company doesn't want to take on any old employees
You have a right to a job with the new company on your old contractual T&C's as you are not redundant (TUPE).
You must take legal advice before signing a Compromise Agreement and agree with your current company that they will be invoiced directly for this.
If you do TUPE across, the new company can make you redundant on your current terms, but it looks like the job is actually still required so would it could be difficult to do immediately. They would also have the option of assimilating you on to their employment contracts with some kind of compensation or inducement to transfer. If not and you refuse to sign their new contract you could resign and seek constructive dismissal or stay and go for breech of contract (not a place any of you want to be in).
It doesn't sound messed up to me, just seems they are trying to avoid the logistical & contractual issues involved in a TUPE transfer to the new company.
It also gives you an opportunity to negotiate on your compromise terms if you don't want to transfer. Gaining skill to improve your employment opportunities, so long as not ridiculously expensive would be a good angle to use. Try to get any additional money labelled as "outplacement support" (income tax-free) although unless your earning huge £ the £30k tax free redundancy won't be crossed by 2x Statutory.
Would the distance to your new job location be significantly different? this may affect your options.
Edited by anonymous-user on Monday 22 November 10:03
OneDs said:
Your current company has transferred part of their operations to another.
YesOneDs said:
They must have consulted with someone before they did this (union or individuals).
No idea, but I assume so.OneDs said:
They have offered you a compromise agreement (not redundancy) as the new company doesn't want to take on any old employees
They have offered us the choice of an enhanced redundancy package or a 'possible' placement with the company that the transport side of the buisness has been transfered to. At a greatly reduced rate.OneDs said:
You have a right to a job with the new company on your old contractual T&C's as you are not redundant (TUPE).
Not according to our HR manager. However everybody else seems to think differently.OneDs said:
You must take legal advice before signing a Compromise Agreement and agree with your current company that they will be invoiced directly for this.
Yes, they have suggested and agreed to thisOneDs said:
Would the distance to your new job location be significantly different? this may affect your options.
No, only a couple of miles apart.OneDs said:
If you do TUPE across, the new company can make you redundant on your current terms, but it looks like the job is actually still required so would it could be difficult to do immediately. They would also have the option of assimilating you on to their employment contracts with some kind of compensation or inducement to transfer. If not and you refuse to sign their new contract you could resign and seek constructive dismissal or stay and go for breech of contract (not a place any of you want to be in).
Sounds far too stressful and risky for me at the moment. Hence taking the redundancy routeOneDs said:
It doesn't sound messed up to me, just seems they are trying to avoid the logistical & contractual issues involved in a TUPE transfer to the new company.
I just don't like the idea that we have been told we will be on a relatively low hourly rate when before we were on a reasonable salary. This is my only real issue. I feel they have tried to pull the wool over our eyes with the way they have worded things. Ultimately I'm sure I will still be taking the enhanced redundancy route, even if they were to clarify that T&C's will be the same. Far too much risk of being made redundant, or having to change T&C's sometime down the line, etc with the new firm I feel.Thanks
Ok, just to be absolutely clear and technically correct.
By signing and agreeing to the "Compromise Agreement" you are resigning your post for some money. That it is equivalent to your current enhanced redundancy terms is purely circumstantial. I'm not sure if this still affects qualification for unemployment benefits.
You cannot be made redundant if your role has transferred (TUPE'd) to the new organisation, only after you have transferred can you then be made redundant on your current terms (if your redundancy package is currently contractual rather than statutory then that must be honoured).
If you are transferred (TUPE'd) then that has to be on the same employment or equivalent contract unless you agree to or are induced to sign a new one. So everything that is contractual in your current contract must be kept in place unless you agree to change it (and then they must in effect buy you out).
The employment lawyer will walk you through this, make sure you focus on this when you talk to them and not just the advice on the compromise agreement.
In effect you need to take charge of this situation and get the best solution for yourself. Sounds like you don't want to move anyway. Get some good advice, any reasonable employment lawyer, not just one who wants the easy money for co-signing the compromise agreement should steer you well.
Get all the information to hand, ask for a record of the consultation process, record your questions and the answers they gave on email, if it's all been verbal so far, just send them a recap email asking for clarification. Might be good to see a CAB representative if you can as well if the employment lawyer will only talk about the compromise agreement.
By signing and agreeing to the "Compromise Agreement" you are resigning your post for some money. That it is equivalent to your current enhanced redundancy terms is purely circumstantial. I'm not sure if this still affects qualification for unemployment benefits.
You cannot be made redundant if your role has transferred (TUPE'd) to the new organisation, only after you have transferred can you then be made redundant on your current terms (if your redundancy package is currently contractual rather than statutory then that must be honoured).
If you are transferred (TUPE'd) then that has to be on the same employment or equivalent contract unless you agree to or are induced to sign a new one. So everything that is contractual in your current contract must be kept in place unless you agree to change it (and then they must in effect buy you out).
The employment lawyer will walk you through this, make sure you focus on this when you talk to them and not just the advice on the compromise agreement.
In effect you need to take charge of this situation and get the best solution for yourself. Sounds like you don't want to move anyway. Get some good advice, any reasonable employment lawyer, not just one who wants the easy money for co-signing the compromise agreement should steer you well.
Get all the information to hand, ask for a record of the consultation process, record your questions and the answers they gave on email, if it's all been verbal so far, just send them a recap email asking for clarification. Might be good to see a CAB representative if you can as well if the employment lawyer will only talk about the compromise agreement.
Edited by anonymous-user on Monday 22 November 15:37
OneDs said:
Ok, just to be absolutely clear and technically correct.
By signing and agreeing to the "Compromise Agreement" you are resigning your post for some money. That it is equivalent to your current enhanced redundancy terms is purely circumstantial. I'm not sure if this still affects qualification for unemployment benefits.
Not necessarily. The reason for leaving could be anything. OP has specifically talked in terms of redundancy. Therefore, the reason for leaving would be redundancy. Whenever I have done CA I have never stated that the reason for leaving is X when it is in fact Y. Of course, if the OP voluntarily leaves, eg reason for leaving in CA is stated as resignation, then this would affect state benefits and perhaps other private insurance to his detriment.By signing and agreeing to the "Compromise Agreement" you are resigning your post for some money. That it is equivalent to your current enhanced redundancy terms is purely circumstantial. I'm not sure if this still affects qualification for unemployment benefits.
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