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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6307
Experience:  15 years experience of advising on employment law matters
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My current position with my employer is being transfered to

Resolved Question:

My current position with my employer is being transfered to another company (in sourced by our current client) as part of this change I am having to change companies under TUPE and will have to relocate to an office 259 miles away from my home , to an area I will be unable to afford to purchase a home. Do I have any right to refuse and take redundancy instead and if so who will be responsible to pay this current or new employee?
Please note I have a mobility clause in my contract which states I could work from any location. can this be disputed as unreasonable?
Submitted: 1 year ago.
Category: Employment Law
Expert:  taratill replied 1 year ago.
Hello my name is ***** ***** I am happy to help you today. How long have you worked for this employer and have you always worked at the same location?
Customer: replied 1 year ago.
Hi Jenny I have worked for my current employer for 9 years we have moved office on one other occasion althoughn it was only 15 miles which I recieved a £158 travel allowance in compensation per month
Expert:  taratill replied 1 year ago.
Are you the only person affected by this move?
Customer: replied 1 year ago.
under Tupe this will affected 4 team leaders and myself operations mangers as these positions are moving back in house with another employer the remaining staff will also need to move under our current employer although they have been advised that the company will not enforce the mobility clause and pay them redundancy if the do not wish to move. The concern I have is my position is being transfered under TUPE and I feel they eill enforce my mobility clause and as a result I will loose my option to redundancy and will be forced to move
Expert:  taratill replied 1 year ago.
So to be clear has the employer told some employees that it will not envoke the clause and will pay employees redundancy?
Customer: replied 1 year ago.
Yes that is correct the employees that remain with tmy current employer and which are not subject to TUPE have been advised tthey will recieve redundancy payments as well as there notice paid in lieu if they do not wish to relocate. Mobility clause will not be enforced was only given verbally to the employee representaives under the consultation process
Customer: replied 1 year ago.
Clause in contract reads
4. PLACE OF WORK
Your principal place of work shall be at the Company's offices at the address set out in the Schedule. You may be required to work at any other offices which the Company occupies or uses or may occupy or may use in the UK on a temporary or permanent basis. You may also be required to travel within the UK and abroad in the course of your duties. There are no additional terms which apply if you are required to work outside the UK for a period of more than one month. The Company reserves the right to issue terms relating to your work outside the UK and any such terms will be notified to you separately.
Expert:  taratill replied 1 year ago.
Hi just so that I fully understand the background is it the case that the entire business has not been sold then, just part of it which is why you are under consultation for TUPE and some are being made redundant?
Customer: replied 1 year ago.
The company I work for is an outsourcing company which provides support staff to a client. The client has decided they what the business to be closer to there head office hence the move of all the staff, however along with this move the client has decided that it wants to take over the management of the staff which is why the team leaders and myself operations manager falls with the scope of TUPE as these positions with my current employer will transfer to the client. I have not yet been advised of TUPE consultation the other staff have been through redundacy consultation
Expert:  taratill replied 1 year ago.
I know I am going off on a bit of a tangent but this is important to the answer. Does the outsourcing company only serve one client?
Customer: replied 1 year ago.
In the UK we have 2 seperate accounts for the same client providing seperate services the other service is currently in the new location that they want myself and the others to move to.
The company does have other clients more so in the States , Canada etc
Expert:  taratill replied 1 year ago.
Ok thanks for that information. Technically in the circumstances you describe it is likely that all employees should be subject to the TUPE transfer. It is interesting that the current employer is making some redundant.
However to move on to your particular situation. Caselaw has dictated that employers can (in certain circumstances) rely on mobility clauses to avoid redundancy.
A recent case on this point however suggested that the clause should be reasonably drafted. A clause that purports to be able to move you to any part of the UK would rarely be seen as reasonable and in your situation you do have grounds to request redundancy instead on the basis that the 'need for a person to do your job at your location has ceased or diminished'. The employer may insist that this is not a redundancy to try to avoid the payout, if this occurs you will need to resign and claim constructive dismissal. You should point out that the fact that others have been told they 'do not have to move' assists your argument.
Hopefully if you put this to them they will see sense and pay you redundancy pay.
If you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
Customer: replied 1 year ago.
Could you please let me know if I have to TUPE rather than resign and start a EAT would the new company offer me redundacy rather than relocate under the terms of my contract
Expert:  taratill replied 1 year ago.
I'm not sure whether I fully understand what you are asking.
If you are asking who the claim should be against (if it comes to that) I would suggest waiting until the date of the transfer and lodging a claim against both the old and new employer to protect your position.
I do think that they will accept it is redundancy in all honesty.
Expert:  taratill replied 1 year ago.
Hello is there anything further you would like to know about this as I can see that you have not rated my answer which is an important part of the process?
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