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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46128
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Hi. Part of the company I work for has been bought out and

Resolved Question:

Hi. Part of the company I work for has been bought out and I am going through the TUPE process. My current company has four parts and only one is being sold. They ideally want me to remain with them but a contract exists with the new buyers that dictates they cannot transfer staff or employ any of the ones TUPE'd across for 12 months. I am told this is quite a standard condition in business take overs. Would you agree? If so, is there a way (a loop-hole) that would alloy me to remain with my current employer, not go through the TUPE process and no contract be breached? My apologies if that isn't completely clear. Many thanks, Jon
Submitted: 2 years ago.
Category: Employment Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today.

Ben Jones :

Are you actually assigned to the part that is being sold?

Customer:

Hi Ben. Yes I am

Ben Jones :

Such a restriction could be legal if you remain employed by the new employer that has taken over the part of the business. However, you can decide to opt-out of the TUPE transfer, although it means you would be resigning and your employment would terminate on the day the transfer takes place. In that case you are then relying on the old employer agreeing to take you back and re-employ you on a new contract, which could be on the same terms as before. However, if you are covered by TUPE you automatically transfer - neither you, or either employers can pick and choose who stays and who goes - there are legal rules that decide that and if you were assigned to the part that transfers then the chances are that you would automatically have to move. That is unless you decide to opt out of the transfer and then are confident the old employer would be willing to take you back on with the same terms and conditions. As long as you are re-employed within a week of resigning you should retain your continuous service with the company, but any break longer than that means you lose that and will be treated as a new employee and lose the long-term benefits of continuous service

Customer:

That's really helpful Ben. To clarify a little further if I may (as this is all completely new to me). I assume I'm legally entitled to opt of the TUPE process? Assuming I do this, and become effectively unemployed would that mean my current employer is free to employ me again without any concerns over the sale contract?

Ben Jones :

yes you are free to opt out of a TUPE transfer unconditionally at any time, it just means that it would amount to a resignation on your part. As mentioned, you are then relying on the old employer to take you back on, which they do not have to do, so ensure you trust them in that respect if this has been promised. If they do take you back on then the restriction should not apply to you because you never TUPE'd across - you resigned before the transfer took place

Customer:

Thank you Ben, it sounds like it's very important I do not TUPE across. I do trust my current employer. How do I officially - and legally - opt out? I assume I need to put something in writing? How should I word that (basically), Many thanks

Ben Jones :

Dear [ ]


Transfer of [NAME OF BUSINESS] to [NAME OF BUYER]


I am writing to inform you that I object to my employment in [NAME OF BUSINESS] being transferred from [NAME OF SELLER] to [NAME OF BUYER] under the Transfer of Undertakings (Protection of Employment) Regulations 2006.


I understand that, as a result of my objecting to the transfer:



  • My employment will terminate on the date of the transfer as if I had resigned.

  • I will not be entitled to any termination payment, including a redundancy payment (whether contractual or statutory), severance payment or payment in lieu of notice.

  • This may affect my right to state benefits.


 


Yours sincerely,


 

Customer:

That's great Ben. One very last point : Just in case this has any relevance. Naturally I’ve not seen the sale contract but it was mentioned the only way I’d not be effected by the ’12 month’ rule of employing existing staff is if I was dismissed.


It’s only a vague question but would that statement make you think immediately of a particular law or rule? Or, is it quite likely somebody simply reading through a lot of T&Cs?

Ben Jones :

this wouldn't be covered by law really - this whole agreement is a contractual one, meaning it is covered by the T&Cs agreed between the parties so what restrictions you are placed under would depend on what is in that agreement, not necessarily what the law says as it does not say much in that respect

Customer:

Okay but I would assume that no matter what the contract states, they couldn't dictate what I do as an individual so if I resign and opt-out of TUPE I'm technically a free agent. I can't imagine they could legally prevent me re-joining my employer on a new contract. It's a different kettle of fish if I TUPE across and resign from the new company

Ben Jones :

yes correct, it would most likely be seen as a restraint of trade and be unlawful

Customer:

Great, thanks Ben. Really appreciate your help. Jon

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46128
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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