Discussion
3 years ago, our employer sold part of their business and TUPE protected our T&Cs.
A couple of months ago we were sold again. This time we were sold as an entire business - we were told that the only change was the owner, and since everything else stayed the same there was no TUPE.
Now, we have been given new contacts which are planned to be effective from January - 3 months after we officially transferred to our new (large, multi-national) company. Most people are not happy with the changes - some benefits have gone, and some clauses in the new contract are not great.
Are they breaking the law? It seems they have bypassed TUPE which exists to protect us against exactly this. I have mailed HR this morning to ask how they are allowed to do this, but if there are any employment lawyers reading this I'd be interested in your answer.
A couple of months ago we were sold again. This time we were sold as an entire business - we were told that the only change was the owner, and since everything else stayed the same there was no TUPE.
Now, we have been given new contacts which are planned to be effective from January - 3 months after we officially transferred to our new (large, multi-national) company. Most people are not happy with the changes - some benefits have gone, and some clauses in the new contract are not great.
Are they breaking the law? It seems they have bypassed TUPE which exists to protect us against exactly this. I have mailed HR this morning to ask how they are allowed to do this, but if there are any employment lawyers reading this I'd be interested in your answer.
edc said:
This can be a complex area to work in. From the surface details it sounds like your employer business has been bought in it's entirety as a going concern. Possibly therefore, there is no TUPE as the legal entity and employer has not changed.
I'd agree with this assessment, but if they are asking for new contracts to be signed, then potentially the employer is now changing.Very odd, and I'd get some professional advice from an employment law expert.
If the shareholders in a company change, there is no change in the identity of the employer and no transfer of undertaking. That may be what has happened here.
The aquisition of a business as a going concern other than by way of a share transfer would be governed by TUPE.
You need to find out if the company itself was sold (no TUPE transfer) or if the company sold its business (TUPE transfer).
The aquisition of a business as a going concern other than by way of a share transfer would be governed by TUPE.
You need to find out if the company itself was sold (no TUPE transfer) or if the company sold its business (TUPE transfer).
From what I understand, you transferred over, your terms and conditions stayed the same once you transferred over. However, if the company decides, due to changes in market conditions (for example, they can use any excuse they want really) they can go through consultation to change your conditions again. TUPE, doesn't mean your T&Cs stay the same forever, despite what some people say.
However I may be wrong, if in doubt consult a TUPE lawyer they will give you the definitive answer rather than Dave who works in stores!
However I may be wrong, if in doubt consult a TUPE lawyer they will give you the definitive answer rather than Dave who works in stores!
Both of the two preceding posts are partly incorrect. TUPE does not just apply to asset sales. It applies to any transfer of the business, and can apply even when no tangible assets transfer. When the shares in a company are sold, there is no transfer, because the legal entity that owns the business has not changed.
An employer cannot change employee contracts for a reason connected with a TUPE Transfer for any reason that it chooses. TUPE protects pre transfer terms and conditions, but there will in time come a point when a change can fairly be said not to be connected with the transfer. Whether a change is connected with a transfer will be a question of fact in any case. Any dismissal for a reason connected with the transfer is automatically unfair unless it is for an economic, technical or organisational reason entailing a change in the workforce.
An employer cannot change employee contracts for a reason connected with a TUPE Transfer for any reason that it chooses. TUPE protects pre transfer terms and conditions, but there will in time come a point when a change can fairly be said not to be connected with the transfer. Whether a change is connected with a transfer will be a question of fact in any case. Any dismissal for a reason connected with the transfer is automatically unfair unless it is for an economic, technical or organisational reason entailing a change in the workforce.
Breadvan72 said:
Both of the two preceding posts are partly incorrect. TUPE does not just apply to asset sales. It applies to any transfer of the business, and can apply even when no tangible assets transfer. When the shares in a company are sold, there is no transfer, because the legal entity that owns the business has not changed.
With respect there is nothing about an asset that says it has to be tangible but whether it is a sale of assets or shares isn't a great way of looking at it, the question really is whether the employer has changed.If your employer is ABC Ltd and after this event you still work for ABC Ltd then TUPE does not apply, it's just that the owner of your employer has changed. But if you used to work for ABC Ltd and after the event you now work for XYZ Ltd then a transfer has taken place and TUPE should apply.
Edited by Siscar on Saturday 14th December 06:48, the first paragraph didn't make sense
Edited by Siscar on Saturday 14th December 06:49
No offense to any of the previous posters, but join a union and seek advise from them. Do NOT take advise from a forum here (unless anyone of course is a professional on TUPE)
I'd highly recommend the BCSA (no affiliation btw). They helped me get through 3 TUPE's in recent years where things did not go smoothly. The guy came round my house on a Sunday FFS where as my previous union, Unite, wouldn't even answer the phone most days.
Edit....anything to do with the Norland buy out by any chance?
I'd highly recommend the BCSA (no affiliation btw). They helped me get through 3 TUPE's in recent years where things did not go smoothly. The guy came round my house on a Sunday FFS where as my previous union, Unite, wouldn't even answer the phone most days.
Edit....anything to do with the Norland buy out by any chance?
I am an employment lawyer with extensive experience of TUPE cases at all levels up to and including the European Court of Justice.
There have been cases in which a TUPE transfer occurred despite no transfer of any type of asset, tangible or intangible. A transfer of assets, including goodwill, may indicate a transfer, but isn't always conclusive. Siscar is right to say that the key question is whether the identity of the party that carries on the undertaking has changed.
Note, by the way, that transfers within a group of companies will be governed by TUPE, as a group is not treated as a single undertaking for this purpose, although it may be for the purposes of competition law.
There have been cases in which a TUPE transfer occurred despite no transfer of any type of asset, tangible or intangible. A transfer of assets, including goodwill, may indicate a transfer, but isn't always conclusive. Siscar is right to say that the key question is whether the identity of the party that carries on the undertaking has changed.
Note, by the way, that transfers within a group of companies will be governed by TUPE, as a group is not treated as a single undertaking for this purpose, although it may be for the purposes of competition law.
Edited by anonymous-user on Saturday 14th December 06:19
Lawbags said:
No offense to any of the previous posters, but join a union and seek advise from them. Do NOT take advise from a forum here (unless anyone of course is a professional on TUPE)
A forum can give you some indicators, there are people here (well Breadvan anyway) who clearly does, it's chopping out the dross from people who don't that is the issue.Lawbags said:
I'd highly recommend the BCSA (no affiliation btw). They helped me get through 3 TUPE's in recent years where things did not go smoothly. The guy came round my house on a Sunday FFS where as my previous union, Unite, wouldn't even answer the phone most days.
British Constructional Steelwork Association or the British Czech and Slovak Association? Are either that good at this?Siscar said:
Lawbags said:
No offense to any of the previous posters, but join a union and seek advise from them. Do NOT take advise from a forum here (unless anyone of course is a professional on TUPE)
A forum can give you some indicators, there are people here (well Breadvan anyway) who clearly does, it's chopping out the dross from people who don't that is the issue.Lawbags said:
I'd highly recommend the BCSA (no affiliation btw). They helped me get through 3 TUPE's in recent years where things did not go smoothly. The guy came round my house on a Sunday FFS where as my previous union, Unite, wouldn't even answer the phone most days.
British Constructional Steelwork Association or the British Czech and Slovak Association? Are either that good at this?But yes, TUPE is a serious affair and people regularly read the 'refusal to sign will indicate your resignation' and sign, regardless of Ts and Cs being different.
I nearly lost around 8 grands worth or perks the first time. Luckily I binned Unite after trying to get a meeting with them for 3 weeks, joined the BCSA and the fella came round my house the following day and got on the case.
Got all my perks and compo too
Lawbags said:
Hmmm. The OP could try them but I'm not too sure how well he'd get on!
But yes, TUPE is a serious affair and people regularly read the 'refusal to sign will indicate your resignation' and sign, regardless of Ts and Cs being different.
I nearly lost around 8 grands worth or perks the first time. Luckily I binned Unite after trying to get a meeting with them for 3 weeks, joined the BCSA and the fella came round my house the following day and got on the case.
Got all my perks and compo too
Well who is the BCSA then? I've never heard of them (and professionally I should) and google doesn't show anything other than the two I mentioned.But yes, TUPE is a serious affair and people regularly read the 'refusal to sign will indicate your resignation' and sign, regardless of Ts and Cs being different.
I nearly lost around 8 grands worth or perks the first time. Luckily I binned Unite after trying to get a meeting with them for 3 weeks, joined the BCSA and the fella came round my house the following day and got on the case.
Got all my perks and compo too
http://www.bluechipassociation.co.uk/
It's only a small-ish union, but I've been with the GMB and Unite, both who let me down. This one has done me well twice
It's only a small-ish union, but I've been with the GMB and Unite, both who let me down. This one has done me well twice
Small-ish? They have less than 500 members, an income of £20,291, no paid employees other than the General secretary costing about £11k. They have assets of £15k outweighed by liabilities of £27k.
It's great that they have done a good job for you, but I'm struggling to see them as a professional organisation or one that will last much longer.
It's great that they have done a good job for you, but I'm struggling to see them as a professional organisation or one that will last much longer.
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