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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Good evening I need advice on an employee who is under TUPE

Resolved Question:

Good evening
I need advice on an employee who is under TUPE and the new employer has suspended the employee pending an investigation of a complaint against the employee. I understand this is standard procedure under the contract of employment of the new employer, but the employee that has been suspended is still on her terms and conditions from her previous employer under the TUPE.
Can the employer do this or should they have consulted her contract of employment and staff handbook from the company she was TUPED from?
Thanks in anticipation of assistance
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. is the employee now working for the new employer and can you tell me the total length of service please

Customer:

The employee was employed by company 1 on 30th April 2012 and tuped to company 2 on Sept 1st 2013

Customer:

the employee is employed now by company 2 but still under the contract of employment of company 2

Ben Jones :

Ok thank you leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded.

Customer:

sorry they are still under the contract of employment of company 1!!

Ben Jones :

Thanks for your patience. You are correct that under TUPE the employee would be bound by their existing terms and conditions, which applied before they transferred to the new company. Therefore, if the employer now wants to discipline the employee for matters that are only included in their current contracts of employment and not something that applied in the employee’s previous employment, they would not be able to do so fairly. The employee has not actually broken any rules or procedures and they did not have knowledge of these terms to know that they have actually broken them. It is not possible to retrospectively discipline someone for something they were not aware of, even if they would have ordinarily been disciplined for this had they been employed directly by this employer and on that employer’s current contract.


 


So the employee’s rights would very much depend on what happens next – for example if they are dismissed as a result they can consider a claim for unfair dismissal. If they are allowed to return to work after the suspension (bearing in mind a suspension is not an indication of guilt and they could easily drop it) he should just consider letting the matter rest as well, but if he is just issued with a warning rather than dismissed then he could appeal and consider raising a formal grievance with that employer.


 


Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer:

I understand the reply - thankyou - what i need to know is if the employees existing terms and conditions/contract of employment (which is a charity) states that the chairman makes the decision on disciplinary action can the current employer take the decision to suspend the employee whilst they investigate the allegations or can the charity chairman overule that as the charity is still registered and is a scrutinity committee for the service that was TUPED. The chairman of the charity was also TUPED and is employed by the service.

Customer:

Sorry one more question - the employee was called into HR at 11am and told that she needed to attend a disciplinary meeting at 4p as a service user had made a complaint against her. The employee was also advised by HR that as standard procdure she could have a union rep or work collegue accompany her to the meeting she was also told that disciplinary meetings could turn into suspension and that she was beinf advised of this as standard procedure.

Customer:

It was arranged that the meeting be changed to 2.30pm so that the employee could have a work place colleague attend, when they both went into the meeting they were told that it was a suspension meeting and the notes/allegations were read out to the employee from a typed prepared statement headed suspension meeting. Has the employee been dishonest by saying it was a disciplinary when in fact they knew and had prepared a suspension meeting? Also the emplyee said that the employee would e sent a copy of the allegations and was not given a copy at the meeting, is this normal practice to post out to the employee the suspension meeting allegations?

Customer:

Should they not have received them in the meeting?

Customer:

Thanks in advance

Ben Jones :

Hello again, once the employee transfers to the new employer, their previous employer has no more say on what happens to them, so even though their contract says that the old chairman makes disciplinary decisions, that does not transfer to the new employer unfortunately. In other words, the employee cannot still expect to have disciplinary decisions against them taken by their old employer and all decisions will be made by the new employer’s management, whatever is stated in their contract – all links with the previous employer will be severed.


 


If the employer had conducted a formal disciplinary meeting at such short notice then it would have been unfair – at least a couple of days’ notice is needed to prepare for such meetings. It is not necessarily dishonest that this ended up being a suspension meeting instead, it could have been a genuine error and in any event no formal notice is required for a suspension meeting as there is no preparation to me made by the employee for such meetings, it is simply a meeting to advise them of what is happening and then the employer would start to investigate the matters and only once a formal investigation or disciplinary meeting is needed should they be given formal notice beforehand.


 


The copy of the allegations must only be provided before a formal disciplinary in order to allow the employee to prepare a defence. It is not necessary to be given these at a suspension meeting.


 


Hope this answers your follow up query?

Customer:

Yes it does, can i just ask does the new employer need to follow the wording of the employees contract from the first employer?

Ben Jones :

in what respect exactly?

Customer:

in the way that the new employee deals with disciplinary action against the tuped employee

Ben Jones :

In general terms, yes, for example if there are specific steps that need to be taken, but it would not be possible to follow it word for word in all circumstances, for example as to who deals with making the decision, it would just be changed to the equivalent person in the new employer's structure

Customer:

so where the new employers terms may say suspension whilst investigation is made and the tuped terms and conditions say kept in post whilst investigation continues should the equivalent person with the new employer follw the tuped terms?

Ben Jones :

Ideally, yes but suspension is not an indication of guilt and there will be circumstances when it can be justified even if the policy states otherwise. It is just a precautionary measure and as the employee still gets paid for that period there is not any loss to them

Customer:

ok i understand thank you i will check there are no more questions and then leave feedback later today once i'm sure

Customer:

thanks so much for your help

Ben Jones :

you are welcome

Customer:

if the alleged incident happened before the tupe and the complaint was only notified last week does that make any difference?

Customer:

Also if the complainant has made a complaint about incidents that are not work related does that make a difference or is it that the incidents could bring the company into disrepute

Ben Jones :

all rights and liabilities transfer to the new employer so even past misconduct can be taken into consideration by the new employer, although it should not be an issue of digging up 'past dirt' and it should only be something recent that the old employer was either in the process of dealing with or something they would have dealt with soon enough. As to the fact these were not work-related disciplinary action is not limited to such incidents and any conduct that may bring the company into disrepute can also be considered

Customer:

thanks. The allegations have been made last week and are relating to incidents that happened before the tupe but the service user has only just made the allegations so the new employer has taken on the complaint/allegation and none of them are work related.

Customer:

An employee assisted a service user in her own time and the service user has now made allegations realting back to last year before the tupe

Ben Jones :

if the complaint has only come in now, even if the actions were carried out before the transfer it is certainly possible for them to be dealt with now by the new employer - what matters is when the employer had knowledge of this

Customer:

has knowledge that the alleged incidents happened prior to the tupe?

Ben Jones :

no has knowledge of the incident as a whole - in this case the employer only found out about this when the complaint was made

Customer:

so when the employee receives the statement with the alleged incidents she must put forward her case to include that all the incidents alleged incidents happened before the tupe

Ben Jones :

it is irrelevant they happened before tupe

Customer:

sorry i don't understand what you mean by "has knowledge of the incident as a whole - in this case the employer only found out about this when the complaint was made"

Ben Jones :

the employer cannot unreasonably delay dealing with a disciplinary matter, so if they knew of this incident a year ago and only take action now, then it would be unfair. However, if they only just found out about this incident, even if it occurred a year ago, they can still deal with it now and take disciplinary action if required

Customer:

ok thanks they did not know about it until last week

Ben Jones :

yes I know hence why they can deal with it now, even if it happened before the transfer

Customer:

thanks

Customer:

the main problem is the suspension in that the employees terms do not state suspension for this type of allegation but the new employers terms do

Ben Jones :

I understand but I discussed that above:

A suspension is not an indication of guilt and there will be circumstances when it can be justified even if the policy states otherwise. It is just a precautionary measure and as the employee still gets paid for that period there is not any loss to them

Customer:

thanks, ***** ***** loss is to the employees confidence and self esteem

Ben Jones :

I understand but not really something that is classified as a 'loss' from a legal perspective

Ben Jones :

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? Thanks

Customer:

I am just waiting on some further information i should have this tonight or tomorrow morning i will know then if i have any further questions

Customer:

if i do have any more questions i am happy to bonus you for your extra time

Ben Jones :

ok no problem but the initial 10-min session has expired so if you need further assistance please add more time on the clock, many thanks

Customer:

ok will do thanks

Ben Jones :

Thank you

Customer:

How do I add more time on the clock as i would like to ask how to word an email to HR

Ben Jones :

Is there anything on the screen that mentions Add Time or similar?

Ben Jones :

or what you can do which may be easier is just rate and close this question then start a new one for the new query

Customer:

there is no add time i will close now and start a new question thanks i don't want you to lose out

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