TUPE transfers and 'change of mind'

[smithyithy]

Some of this might be best answered by the likes of ACAS but obviously it's the weekend so I thought some people may have some advice before I have chance to speak to them.

Myself and a few colleagues have just gone through TUPE within our larger company, and the situation's a bit rocky, it's a bit tricky to explain without giving specifics (don't really want to post those publicly) but I'll try to summarise:

• Big government contract, typically 6-8 years. Gov company owns the asset(s), controls the funds, and decides what gets spent and where
• Consultancies bid for the contract to manage the assets, carry out design work etc.
• We worked for the previous consultant ('Company A'), however the form of contract has changed this time around (starting 1st July), with the gov company now taking a lot more in-house
• 'Company B' won the contract, however, most of us were given the choice to TUPE to either the Gov company, or Company B, as the work was being split and generally, both companies require the skills of everyone leaving Company A
• We've had 1-2-1s, heard brief sales pitches from Gov and Comp. B, and in the end myself and the colleagues within my team opted for Comp. B
• Last week was the end of the previous contract, and the start of the new one, so as you can imagine it's been a bit chaotic. Both companies will be sharing the same offices, there's still a lot of uncertainty about how work and responsibilities will be split based on final TUPE numbers etc. A lot of people jumped ship to companies and contracts elsewhere, so both Gov Comp and Comp B will need to recruit in the short term
• Myself and my team felt that Comp B was the better fit for our roles, based on the info we received from either side. However over the past few days, there has been a lot going on in the background, with Comp B not acting in the nicest way, shall we say, and actually screwing over a few key people at the 11th hour by telling them their roles were suddenly unavailable, even though they'd signed up to TUPE to them. There's been a lot of other shadyness going on but I don't want to go into specifics
• Some of the employees who were shafted at the last minute, luckily were able to speak with Comp A's HR and despite initially turning them down, were able to TUPE to Gov Comp at the last minute, retaining their jobs
• The few of us who are still at Comp B are now left with a bitter taste in our mouths, compounding somewhat by our experience on Day One with them which was yesterday. In fairness neither company sold themselves particularly well during the consultation process, and it was left very vague as to which company would actually be doing the work that our team had done for Comp A for the past 6 years - we think that neither company actually knew this, and were probably waiting to see how many, and which employees they ended up with before deciding the work they can do, rather than deciding this first and making an effort to retain the best staff to carry out those roles
• We're now in contact with our former colleagues who were 'saved' by Gov Comp, about the possibility of moving to Gov Comp in the immediate short term, and still being able to do so under TUPE so our T&C's etc are retained. Gov comp's HR indicated to them that it may be possible, but it would need to happen ASAP, as in, when we're back in the office on Monday. This is obviously very tricky as firstly, we don't know if it's actually possible to still do under TUPE, secondly it's hard to know whether we should stick it out with Comp B and at least see how it goes.. The issue with that is, if we later decide to jump across, we won't keep our T&C's, and would have to rely on new roles being available that are equivalent and don't result in pay decreases (being a gov comp they have set bands which are generally non-negotiable, so the benefit of TUPE is we'll generally be earning more in our respective bands than we normally would, and that salary is protected)

I guess my general questions are - does anyone know if there is a 'grace period' under TUPE, if like in this case we opted for one of two TUPE options, and want to revert on that decision in the immediate short term, and, now that we are technically employed by Comp B, are Gov Comp legally allowed to speak to us at all regarding this? Because if we decide to at least consider it, we really need to speak to their side to get some reassurances. Obviously this all would have been better done before we actually changed employment, but as I say, it's been a period of little information or clarity, followed by a final 2 weeks of crunch to finish some projects, backing up and sorting out gigabytes of files and IT nonsense, and being drip-fed information about the dodginess going on in the background on the final few days..

Otherwise - long shot - but has anyone experience anything similar to this, or TUPE in general that may be able to offer any advice?? We've just had an hour long group call weighing up our options, we're all a bit stressed about the whole thing in all honestly...

Cheers.

[Collectingbrass]

I dealt with a similar TUPE at Easter 21. We were receiving a split group from the outgoing outsource co.

My recollection (and I am an Engineer turned PHB, not an HR wonk or a lawyer) was that we gave a grace period of the full transfer day because it was Covid, Easter and we had a number of reporting locaitons across the country. Our HR team normally expected employees comin gin on TUPE to have declared their hand by 10am on transfer day, and were happy to give the extension as what we were receiving was scarce mission critical resource and we wanted to appear as attractive as we could do.

Whether your die is cast will be down to both orgs, a contract means what both parties agree it does until they ask a judge to rule on it of course. If you'd prefer to be in gov co and jump ship on Monday, you might be able to get transfer of service agreed and your TUPE back dated but that will be down to the HR team and how flexible they want to be. You really need legal advice, are you in a union, does either your old or new employer have an assistance line or can you get access to legal advice through your home insurance?

If it is as fluid as you say can you take "pay and rations" management from Org B and "task and finish" directions from Gov Co, at least for a while till it settles down and the smoke clears?

[Panamax]

Others will be more expert in this field than me. However, in general terms TUPE isn't a voluntary subject. IF a business or a contract is transferred (typically from one company to another) then the employees go with it whether they like it or not, but carrying their existing terms and conditions of employment, length of service etc. There are specific provisions which require "consultation" with the workforce before the transfer.

Having said that, an employee has the right to refuse to transfer to the new employer BUT they leave themselves at risk of dismissal with no right to compensation. Avoid.

I have never encountered the "choice between two employers" situation that you described. Obviously all the usual TUPE rules apply and you are then left with the question of if/when your "choice" becomes binding. As ever, the first question has to be "What did the paperwork say?". If a firm, binding choice was made then it's difficult to see a route back from that.

The only avenue that immediately strikes me is if you and your colleagues are able to argue the consultation process was defective in some way. i.e. there were relevant factors about the transferee employer which were not made known to you.