TUPE Regulations expert
Discussion
Breadvan72 said:
If this is an academic or hypothetical question, I don't do academic or hypothetical. If it is a real question about a real business situation, directors may be above the pay grade for getting freebies from lawyers, and, quite apart from that, they may wish to protect themselves by obtaining insured advice rather than internet car chat advice. If the advice is for one of the employers in the case, the above may apply with extra knobs on.
If the organisations are NGOs, charities, and so on, or the workers in question are downtrodden victims of the Iron Heel, freebies may be available.
If the organisations are NGOs, charities, and so on, or the workers in question are downtrodden victims of the Iron Heel, freebies may be available.
Got out of the bed the wrong side today? Breadvan72 said:
Better to get out of a bed that someone else has paid for, but sometimes you then have to jump out of the window.
Pro bono is like dining a la carte. No set menu, and you can decide not to dine at all. Paid gigs are like prison dinners - set times, set menus, eat up.
Out of bed the wrong side & intoxicated! Pro bono is like dining a la carte. No set menu, and you can decide not to dine at all. Paid gigs are like prison dinners - set times, set menus, eat up.
Fair swap is no robbery, if you want to trade your skill & knowledge for mine I'm happy to help. Trouble is my offer is pubs of the UK and pop music from the 1970s. Still, you never know
Grumpy because sober - having a bit of time off the electric soup in the interests of de-lardification. Also grumpy because grumpy. It's a thing.
TUPE protects workers rather than statutory office holders, but where directors are workers, they may also have TUPE protection. The non exec who rocks up once a quarter, signs off on some dodgy documents, looks the other way on some shonky shenanigans, and then has an agreeable lunch with the CEO, is not likely to be TUPEficated.
All, depends, as always, on the facts. There is a decision from 2012 ish about the directors of a charity not counting as workers on a TUPE transfer, but it turned on its own facts.
Also, is this a share transfer (no TUPE), or a transfer of a going concern but not by way of share transfer? EDIT: RTFM, I see that this is a loss of a gig case.
The fate of TUPE in the Great Repeal Bill remains to be seen.
I know about lots of pubs and some 70s music, but only the good 70s music.
TUPE protects workers rather than statutory office holders, but where directors are workers, they may also have TUPE protection. The non exec who rocks up once a quarter, signs off on some dodgy documents, looks the other way on some shonky shenanigans, and then has an agreeable lunch with the CEO, is not likely to be TUPEficated.
All, depends, as always, on the facts. There is a decision from 2012 ish about the directors of a charity not counting as workers on a TUPE transfer, but it turned on its own facts.
Also, is this a share transfer (no TUPE), or a transfer of a going concern but not by way of share transfer? EDIT: RTFM, I see that this is a loss of a gig case.
The fate of TUPE in the Great Repeal Bill remains to be seen.
I know about lots of pubs and some 70s music, but only the good 70s music.
Edited by anonymous-user on Thursday 18th May 09:24
As per BV's post above - you will need real insured & paid for advice. The below is general information, which will vary for TUPE on a case by case basis.
I was involved in an amount of TUPE work over recent years, and the most common outcome when asking about a general rule would be 'well that depends...'
So as a general rule (
) you have 2 tests to pass
1.) Is the person an employee, and
2.) Was the particular employee, prior to the transfer, assigned to the organised grouping of employees which was organised to have as its principle purpose the carrying out of the activities for which the client contracted, on the client's behalf
1) - Case law (that I had listed) - http://www.bailii.org/uk/cases/UKEAT/2008/0225_07_... . This deals with determining whether a director (even one with 50%+ holdings) can be an employee - in this case no, but found by looking at the whole picture including how the director was remunerated
2.) Case Law - http://www.bailii.org/uk/cases/UKEAT/2012/0061_11_... . Was the actual role of the director mainly a strategic/organisational one, or was it mainly frontline service delivery.
These would give you some background to understand the possible position, but as above - get real advice, additionally my experience of corporate functions is that they tend to give more weight to qualified legal opinions, even if the opinion is identical.
Edit - cross posted with BV's later post above
I was involved in an amount of TUPE work over recent years, and the most common outcome when asking about a general rule would be 'well that depends...'
So as a general rule (
) you have 2 tests to pass1.) Is the person an employee, and
2.) Was the particular employee, prior to the transfer, assigned to the organised grouping of employees which was organised to have as its principle purpose the carrying out of the activities for which the client contracted, on the client's behalf
1) - Case law (that I had listed) - http://www.bailii.org/uk/cases/UKEAT/2008/0225_07_... . This deals with determining whether a director (even one with 50%+ holdings) can be an employee - in this case no, but found by looking at the whole picture including how the director was remunerated
2.) Case Law - http://www.bailii.org/uk/cases/UKEAT/2012/0061_11_... . Was the actual role of the director mainly a strategic/organisational one, or was it mainly frontline service delivery.
These would give you some background to understand the possible position, but as above - get real advice, additionally my experience of corporate functions is that they tend to give more weight to qualified legal opinions, even if the opinion is identical.
Edit - cross posted with BV's later post above
Edited by anonymous-user on Thursday 18th May 09:44
Thanks both, I do like it when we play nicely
We are taking proper (and paid for) legal advice, but It's also nice to get alternate views, or even just more background.
We are the winners of the contract, and having to staff rock up & ask "when do we start" will actually be handy. Not so sure about four grumpy ex-directors.
Hot Chocolate were the only group, and one of three acts, to have a hit every year of the 1970s.
This was a bit of a place:
We are taking proper (and paid for) legal advice, but It's also nice to get alternate views, or even just more background.
We are the winners of the contract, and having to staff rock up & ask "when do we start" will actually be handy. Not so sure about four grumpy ex-directors.
Hot Chocolate were the only group, and one of three acts, to have a hit every year of the 1970s.
This was a bit of a place:
Breadvan73 said:
If your employment transfers to the transferee you become an employee of the transferee. Your terms and conditions of employment will be preserved
That's fine in theory and easy to quote from a piece of paper but in practice, if your face doesn't fit with the new employer, they can easily deny you your original T&C's and there really isn't anything much you can do about it.Yes, there is, You can sue the employer. I have frequently acted for employees who have won cases in the circumstances you describe. The law is only a piece of paper if you don't take steps to enforce legal rights. It is hard and expensive to enforce some rights. That is why employees should join unions.
You have maybe had one or maybe more than one bad experience and were trampled on. I have had thirty years experience that has included a fair amount of seeking to prevent trampling - often (not always, but often) succeeding in doing so or in obtaining remedies post-trampling.
You have maybe had one or maybe more than one bad experience and were trampled on. I have had thirty years experience that has included a fair amount of seeking to prevent trampling - often (not always, but often) succeeding in doing so or in obtaining remedies post-trampling.
Edited by anonymous-user on Friday 19th May 15:35
Breadvan72 said:
Yes, there is, You can sue the employer. I have frequently acted for employees who have won cases in the circumstances you describe. The law is only a piece of paper if you don't take steps to enforce legal rights. It is hard and expensive to enforce some rights. That is why employees should join unions.
You have maybe had one or maybe more than one bad experience and were trampled on. I have had thirty years experience that has included a fair amount of seeking to prevent trampling - often (not always, but often) succeeding in doing so or in obtaining remedies post-trampling.
Again, 'sue the employer' is very easy to quote from a piece of paper, but being disabled, if I lose this job, I'll never work again. It'll be a life of benefits and a life of poverty. That's the reality here. Who's going to provide me with a similar wage until I retire? You have maybe had one or maybe more than one bad experience and were trampled on. I have had thirty years experience that has included a fair amount of seeking to prevent trampling - often (not always, but often) succeeding in doing so or in obtaining remedies post-trampling.
Edited by Breadvan72 on Friday 19th May 15:35
I did have a decent job with a global company and then I was TUPE'd into a small family run business, where it was made clear to me and I was told to my face on my first day, that I wasn't welcome there and they've been trying to manage me out the door ever since. And I was in a union, the regional officer regularly ignored calls and emails from me, probably because being disabled, I'm high-maintenance and he presumably wanted a quiet life.
But as it stands right now, I'm in a job, earning a wage and I regularly stick two fingers up to the management by still being here...despite their best efforts to get rid of me.
I am not quoting from a piece of paper. I am talking about real world experience over three decades. You appear to be using a sample of one (your own case) to make broad generalisations. My data sample is a tad larger than yours. If you choose not to assert your position when an employer acts adversely to you, that's up to you, and your circumstances may be difficult, but this is not a choice that everyone is bound to make. If disability is an issue, you could be eligible for assistance from an organisation such as the EHRC.
Edited by anonymous-user on Friday 19th May 22:45
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