Tupe Protection Question.

[neeeeeeeeeek 10]

So my job is being outsourced, the whole team is being tupe'd to some as yet un-named company, supposedly at the  start of December.  We have just received an email saying that

 

The outsource provider will be contractually committed to retain staff transferred under TUPE until their service area transitions from as-is to the new outsourcer operating model/service. This means that all staff in scope for TUPE will have job security until at least march.  

 

Long-term employment opportunities with the outsource provider will be discussed during the collective and individual TUPE consultation, including wider opportunities within the outsource provider organisation.

 

I thought TUPE meant they could not change your terms and conditions for a year?  The work will still be there so they can't just replace us with cheaper versions or give it to their existing staff. (assuming they have people in their business doing similar roles).  Guess as the moment we just have to wait and see as we have zero information but this does sound like after 3 months they plan to screw us over!

 

Anyone know  much about it?

 

thanks

 

[Janus 28]

When we were transferred to a  facilities management company there was 2 options.

 

Option1: move across to this new company at their lower rates of pay, no company sick pay only SSP.  Our company  pension contributions finished, and we got our redundancy  (from the original employer).

 

Option 2: Move to the new company under TUPE and stay on same rates of pay, same company sick pay scheme, remain in old company pension scheme, same rates for overtime, BUT no redundancy payout as you were not being made redundant.

 

The old company pay a lump of cash to the new company to save cash. You basically do the same or more work for less money/benefits.

 

Here is one such company:

https://www.maclellanlive.com/services/integrated-facilities-management

 

Edited September 24, 2019 by Janus
Additional info

[TeaFan 10]

Eh up 🙂

 

If your role exists in the new company they have to accept you under TUPE, but there is nothing to stop them almost immediately restructuring and making posts redundant. However, if they do that and anyone loses their job, they would do well to keep a close eye on any recruitment for that company, because if the same role reappeared a couple of months later on lower pay they would have a case against the employer.

 

They can leave you on your existing Ts and Cs or transfer you to another set, usually after a year.

 

 

[Funky_Gibbon 42]

I'd give ACAS a call if I were you rather than rely on our *ahem* expertise...

 

https://www.acas.org.uk/tupe

 

Their website says the following though:

 

Quote

The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 2014 apply to relevant transfers that take place on or after 31 January 2014.

The Regulations stipulate that, generally, contracts cannot be varied if the transfer itself is the sole or principal reason for the variation. This is the case even where the employer and employee agree the variation; any such variations will be rendered void by the Regulations.

 However, the employer may vary the employee's terms and conditions in the following circumstances:

 

• the employer can show that the sole or principal reason for the variation is a valid economic, technical or organisational (ETO) reason entailing changes in the workforce. An ETO reason must relate to a change in the numbers, roles or location of the employees affected. Simply wishing to harmonise terms between incoming and existing employees is unlawful and will not amount to a valid ETO reason.
• the terms of the employment contract permit the employer to make such a variation
• the changes are entirely positive from the employee's perspective (as the purpose of the Regulations is to ensure employees are not penalised by being placed on inferior terms and conditions when they are transferred)
• where a contract of employment incorporates terms and conditions from a collective agreement that were agreed prior to the transfer, those terms and conditions can be renegotiated when more than one year has passed since the date of the transfer. In such cases, after any variation the employee's contract must be no less favourable overall than it was immediately before the variation. This may result in some individual terms being less favourable as a result of the variation, but others being enhanced so that they are more favourable in order to compensate and balance things out overall
• the change is for a reason completely unconnected to the TUPE transfer (e.g. circumstances that have arisen since the transfer took place)

In all of the above circumstances, the employer must still follow the correct procedures in order to implement any variations lawfully.

This is a complex area of law, and so if there is uncertainty as to whether any proposed changes to employees' contracts would be lawful following a TUPE transfer, advice should be sought from an employment solicitor.

 

Edited September 24, 2019 by Funky_Gibbon

[Janus 28]

40 minutes ago, neeeeeeeeeek said:

The work will still be there so they can't just replace us with cheaper versions or give it to their existing staff.

When they came to our firm and took over the facilities (not the core business) they only came with management & supervisory staff. No-one was pushed out in favour of their own staff.

[Janus 28]

There was only  one or two guys that went the TUPE route. Cannot advise on time lines and how things can change, as we went the other route so we could get our grubbly little fingers on the redundo. 

Edited September 24, 2019 by Janus

[neeeeeeeeeek 10]

Thanks everyone,  all info greatfully received!

 

I expected to get screwed over after a year but the wording saying your job is safe until March was a surprise.  Sounds like they already plan to restructure immedietly. The roles will still exist,  it is the IT function for a 10000+ employee company so someone has to keep it running!

 

We have not been given redundacny as an option, we are in the pot of people being tupe'd.  Other people are in a pot with role mathcing and redundancy but we don't have a choice.

 

 

[MobileB 10]

TUPE is probably the most complex area of Employment Law there is.  In theory it should be very simple - but its not.  

 

Generally you are protected with your current T&Cs (although note your pension is not) - this sounds like a simple change of service provision so you are covered by the 2006 regulations.  Are the new company going to maintain service at the current location?  That is usually the first question.  If yes, then you will just carry on except with a different employer but your continuous service, pay etc remains the same.  However, if they are planning to move the work elsewhere then it does become very complex although no matter where it is being moved to (even South Africa!) you have a right to move with the work on your existing T&Cs.

[neeeeeeeeeek 10]

19 hours ago, MobileB said:

TUPE is probably the most complex area of Employment Law there is.  In theory it should be very simple - but its not.  

 

Generally you are protected with your current T&Cs (although note your pension is not) - this sounds like a simple change of service provision so you are covered by the 2006 regulations.  Are the new company going to maintain service at the current location?  That is usually the first question.  If yes, then you will just carry on except with a different employer but your continuous service, pay etc remains the same.  However, if they are planning to move the work elsewhere then it does become very complex although no matter where it is being moved to (even South Africa!) you have a right to move with the work on your existing T&Cs.

Thee work should not change, I cover an area with multiple and changing sites so not at one location. The service desk I am sure will all lose their jobs as the new company will have a big one in India. They will still need the mobile guys on the ground though in the UK unless they have their own existing engineers, which is a worry as being told you are safe until March seems to imply that after march, who knows!  We don't even know the name of the company yet so can't even look to see what other contracts they have to see how they operate. In theory with Tupe I assumed that we would be OK for a year, but the wording implies otherwise... 

[MobileB 10]

11 hours ago, neeeeeeeeeek said:

Thee work should not change, I cover an area with multiple and changing sites so not at one location. The service desk I am sure will all lose their jobs as the new company will have a big one in India. They will still need the mobile guys on the ground though in the UK unless they have their own existing engineers, which is a worry as being told you are safe until March seems to imply that after march, who knows!  We don't even know the name of the company yet so can't even look to see what other contracts they have to see how they operate. In theory with Tupe I assumed that we would be OK for a year, but the wording implies otherwise... 

Not sure where you get the year from. If you have any termination fears related to the TUPE you are protected forever. That doesn't stop a company making redundancies but it has to be for genuine ETO reasons and not related to the TUPE.

 

The point I was making about the location was more to do with static staff. It does become even more complex with mobile workers! 

 

You say the transfer is scheduled for December. You'll find out your new employer at least 28 days before transfer due to the need to disclose at that stage and as your personal data is bring disclosed they need to inform you.