Hello, my name is Ben and it is my pleasure to assist you with your question today. Did they keep their redundancy pay?
Well if TUPE applied to a situation, the employees would automatically transfer to the new employer and they will by law have continuous service carried over from their previous employer. This is not a choice, it is what the law says. So whilst the employees can choose whether to transfer or not, if they choose to work with the new employer then they will automatically transfer under TUPE and their employment would be unbroken.
So what should have happened is that they were asked to repay their redundancy payments at the time as they were no longer redundant but had their employment transferred to the new employer. Whilst the receipt of a redundancy payment would usually result in the termination of someone’s employment, this would be overruled if TUPE actually applied so the issue really is whether there was a valid TUPE transfer and if there was – then their employment would have been continuous.
So is the question then:
If it wasn't a valid Tupe transfer then employment begins from when they were re employed by our business?
If it was a valid Tupe transfer who should have instigated the request for repayment of the redundancy?
How would we determine if it was valid or invalid Tupe transfer?
Yes correct – they key is was this a valid TUPE transfer. You need to check whether the criteria for TUPE was met – this can be complex however so you will be best advised to take formal legal advice to determine that. However, I this was the take over of a business in administration as a matter of going concern then it is likely TUPE would have applied. As you would have taken over the responsibilities and liabilities of the employees then it would have been for you to ask for the redundancy back at the time.
Now we would have had legal representation at the time of the acquisition should it have been the responsibility of that legal representation to advise us to - ask for the redundancy pay back?
could we assume that as we never asked for the redundancy pay back it was not a valid Tupe transfer?
you cannot argue that there was no TUPE transfer just because yu did not ask for the redundancy back - there either was a valid transfer or there wasn't - that is a matter of fact and law. If you received formal legal advice at the time then it would depend on what the advisers knew of the situation and whether a reasonable lawyer in their position would have advised you to ask for the redundancy back because if they would have and your advisers did not, it is potential negligence
Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?