TUPE problems - new employer doesn’t want us
Discussion
Quick question if anyone has been through this, my current contract is being taken over by a new company at the end of June. My current employer and my union have both advised that TUPE applies but the new employer has refused it, based on pretty tenuous reasons and it looks like it will end up in court. In effect me and many others will effectively cease employment without any notice, statutory or voluntary redundancy and find ourselves stuck between both companies.
TUPE seems to offer my current employer a handy way to avoid paying redundancy and my potential new employer enough reasons either to refuse TUPE in the first place and enter a drawn out legal process with little hope of resolution in the near future, or best case, start employ,ent to be made instantly redundant.
Obviously we are talking to solicitors and it looks like we will have to go to ACAS first and then court, which could take years. It’s fair to say that things have changed since the contract changed hands and the new company don’t really need as many of us, potentially none of us.
But, the gotcha is, the new company has won a fair bit of work in my field and looks to be the only employer that we would have any chance of getting a job with in the near future. Obviously with legal action against them I can’t imagine they would give us a job anyway....so the question is...what would you suggest?
I’m totally lost tbh and very frustrated. It looks like my only realistic option is to drop everything and go cap in hand to the new company for a much lower position to keep the wolf from the door, as money from a legal action could be years away and obviously we might get nothing anyway.
Any advice appreciated.
TUPE seems to offer my current employer a handy way to avoid paying redundancy and my potential new employer enough reasons either to refuse TUPE in the first place and enter a drawn out legal process with little hope of resolution in the near future, or best case, start employ,ent to be made instantly redundant.
Obviously we are talking to solicitors and it looks like we will have to go to ACAS first and then court, which could take years. It’s fair to say that things have changed since the contract changed hands and the new company don’t really need as many of us, potentially none of us.
But, the gotcha is, the new company has won a fair bit of work in my field and looks to be the only employer that we would have any chance of getting a job with in the near future. Obviously with legal action against them I can’t imagine they would give us a job anyway....so the question is...what would you suggest?
I’m totally lost tbh and very frustrated. It looks like my only realistic option is to drop everything and go cap in hand to the new company for a much lower position to keep the wolf from the door, as money from a legal action could be years away and obviously we might get nothing anyway.
Any advice appreciated.
Matt_E_Mulsion said:
Surely if there is no agreement settled on between your current employers and the new employers then TUPE cannot apply? Which would effectively leave you still being employed by the same current people, and if they have no work then they would have to make you redundant?
It’s an interesting conundrum and potentially could happen. Effectively my company’s legal position is that TUPE applies very clearly and we are employed by the new company in 5 weeks time....who have refused TUPE and said (informally they don’t want or need us). I guess it will come down to whether our company do the honourable thing and make us redundant (I have my second consultation next week) which they won’t want to do.....or whether they cast us to the legal morass we currently face.Jasandjules said:
What exact reason are they specifying?
PS it may be you are redundant....
It’s fairly complicated why the new company refused tupe and I can’t legally go into it, but needless to say my company’s lawyers, my unions and a separate company all said it’s a very clear case of tupe. However, the new company have informally said they don’t nee is, can’t afford us and don’t want us. Hence the assumption that they would rather drag it out into court when the realistic result is a drawn out case for a handful of us left who don’t get another job with the new company.PS it may be you are redundant....
Edited by Jasandjules on Saturday 23 May 09:48
The exact reasons they have given us for not applying tupe are very tenuous and even to my untrained legal mind they sound more an excuse than a reason.
Siko said:
It’s fairly complicated why the new company refused tupe and I can’t legally go into it, but needless to say my company’s lawyers, my unions and a separate company all said it’s a very clear case of tupe. However, the new company have informally said they don’t nee is, can’t afford us and don’t want us. Hence the assumption that they would rather drag it out into court when the realistic result is a drawn out case for a handful of us left who don’t get another job with the new company.
The exact reasons they have given us for not applying tupe are very tenuous and even to my untrained legal mind they sound more an excuse than a reason.
It sounds like it will be an ETO.The exact reasons they have given us for not applying tupe are very tenuous and even to my untrained legal mind they sound more an excuse than a reason.
Siko said:
Yes the lawyers mentioned ETO and without going into details there are reasons there for the new employers to make us redundant due to ETO. That may be the best result and then prob a case of pocketing the pay and holding out for a lesser job later in the year.
Indeed. I advise clients on them too....And yes you also have to consider whether any payment may come out of the NI fund thus at least have a guarantee...
Siko said:
Jasandjules said:
What exact reason are they specifying?
PS it may be you are redundant....
It’s fairly complicated why the new company refused tupe and I can’t legally go into it, but needless to say my company’s lawyers, my unions and a separate company all said it’s a very clear case of tupe. However, the new company have informally said they don’t nee is, can’t afford us and don’t want us. Hence the assumption that they would rather drag it out into court when the realistic result is a drawn out case for a handful of us left who don’t get another job with the new company.PS it may be you are redundant....
Edited by Jasandjules on Saturday 23 May 09:48
The exact reasons they have given us for not applying tupe are very tenuous and even to my untrained legal mind they sound more an excuse than a reason.
2 sMoKiN bArReLs said:
Jasandjules said:
2 sMoKiN bArReLs said:
What is ETO?
(other than English Touring Opera, which I guess is not what you are referring to
)
Economic, Technical or Organisational.(other than English Touring Opera, which I guess is not what you are referring to
)Well, with less than a month to go the new company has agreed to TUPE us across. Massive relief but I can’t say I ever want to go through it again, in fact I don’t think I’ll transfer anyway as the experience has left a very sour taste in my mouth. I’ve made so many plans to do other things now that I have no wish to do the same s
t for a different company that will likely make us redundant on day 1 anyway (have been told by a high placed source that is their plan). Thanks for all the advice in this thread.
t for a different company that will likely make us redundant on day 1 anyway (have been told by a high placed source that is their plan). Thanks for all the advice in this thread. edc said:
Don't take it personally. You don't have to transfer. Indeed you could have resigned at any time you wanted and still can post transfer. Unless you don't need the money or already have a confirmed start date elsewhere then you may as well transfer and continue making other plans.
Interesting. I did think about this but did wonder if it would be the wrong thing to do and certainly I’d be persona non grata for ever with the new company. Be great to get 4 months salary and bugger off to a new job but I just can’t see it happening. The new company have a fairly exhaustive and expensive training course to do on us first which may influence redundancy or even if I give notice, I can’t imagine they’d make me turn upto work for 3 months when I can’t do anything anyway. Interesting times indeed.
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