New TUPE Guidance from the DTI
by Liam
Back in January 2007, this Blog posted about a TUPE case that held only post Transfer changes that are detrimental to the employee are void - changes that are beneficial to the employee are allowed (see here).
The DTI has now issued a guide for Employers, Employees and Representatives which reflects this new case. As one might expect for something TUPE related, the guide is not short but is nonetheless helpful background reading.
If you would like to know more about TUPE 2006, why not listen to our podcast
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Hi,
We are being transferred to a new company and in current T & C’s we have a 12 month full pay notice period from the company and we have to give 3 months. The new terms are 3 months from Company & 4 weeks from us.
I wanted to know would I be entitled to any monetary compensation for the loss of the 9 months full salary should I be made redundant or company fails ?
Thanks,
Steve said at September 4th, 2007 at 1:23 pm
Steve
I would say the new company are pushing their luck making such changes. As a general rule, you are entitled to be employed by the new company on the same terms and conditions (and that includes notice) as with the old company. There is an argument that this change is unenforceable and you may therefore be able to sue on your old notice terms if it comes to that.
There are steps you could take now to help protect your position - please give me a call if you would like to discuss this further.
Liam.
Liam said at September 5th, 2007 at 7:46 am
My folks retired. The new owner is closing up shop soon & says we should pay the redundancy money for the staff & is witholding money from us until we sign a statement saying we are responsible for the staff redundancy & also any money due to the memnber of staff the new owner sacked. The new owner states there is nothing in the contract of sale of the business mentioning transfer of staff. who is right? Thanks
Lisa said at December 12th, 2007 at 10:45 am
Lisa, thanks for your question. I need a bit more information about what is happening in order to help. In particular I would need to see the contract for the sale of the business. You can call me on 0870 350 5805 to discuss further.
What I can say, is that TUPE applies where the TUPE Regulations say it does, even if the contract is silent on the point. Where TUPE applies, the buyer of the business is responsible for all liabilities after the transfer date. However, these liabilities can be reassigned by way of an indemnity in the commercial contract covering the sale of the business.
I look forward to hearing from you.
Liam Pike
Solicitor.
Liam said at December 12th, 2007 at 11:25 am
I was transferred under TUPE to my present employer from my previous employer and gained the rights to PHI and medical retirement whilst being paid 75% of my current salary. My new employer has now written to me to state that I am being TUPEd back to my original employer. Will I lose the PHI benefits after the transfer to the previous employer as they do not offer this? The actual money paid to me comes from the current employers pension fund, paid via the company payroll but funded by a third party insurer. How does the transfer affect me in this case as effectively I am a retired employee?
Simon said at May 8th, 2009 at 10:30 pm
Simon
I would need more information - are you an ex-employee or a current employee? TUPE only applies to current employees not ex-employees.
Under TUPE, the basic rule is all terms and conditions transfer (other than pensions). This is so even if the transferee does not offer the benefit in question (e.g. PHI). They would either have to start offering it or offer a substantially equivalent benefit. Even if the PHI is paid as part of the pension, following the Beckman ruling, there is an argument that it is not a pension (benefit relating to old age) and therefore is still subject to the normal TUPE rules i.e. it transfers.
Please give me a call if you would like to discuss further.
Kind regards
Liam Pike
Solicitor.
Liam said at May 14th, 2009 at 7:41 am
Hi liam
some advise I am a contract supervisor and all of my staff have currenly been tupe over this week to the new service provider.
My current employer never offered me or discussed transfering over on the tupe as they wanted to retain me.
I felt pressured not to repond to them to put me on the tupe list. Since yesterday we have currently lost other contracts and the future for all members of staff is not so good
were would I stand in this situation if I am made redundant would I have any rights to challange my current employer
thanks
Brian burns said at April 2nd, 2010 at 6:27 am
My company have just lost a contract, and my customer mentioned to me I can transfer to the new supplier under TUPE.
The customer has discussed this with the new supplier, but they have not yet contacted me. Who’s responsibility is it - my current employer or potential new employer - to start the process?
Thanks
Donna said at May 6th, 2010 at 10:42 am
Donna
Strictly speaking its the Transferor (current employer) who should start the process with you. The Transferee (new employer) does have to give some information in writing to the Transferor to enable them to consult with you, if the Transferee envisages taking any measures (changes) in relation to your employment (redundancies, restructuring, changes to your Ts and Cs for an ETO reason etc.) However, the failure of the Transferee to provide measures information should not prevent the Transferor at least informing you about the transfer. If the situation doesn’t improve, please give me a call on 08448 505 805 and we may be able to help based on what you have told me so far.
Liam said at May 18th, 2010 at 7:26 am