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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46183
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have initiated a case against 2 former employers, call them

Customer Question

I have initiated a case against 2 former employers, call them 1st respondent FR being the transferee and SR being the transferor for constructive dismissal within a background of a TUPE transfer. The case is due to be heard on 18/02.Transferor SR, represented by administrators appointed on 17 july say there was a transfer. FR say there was not; they changed their minds, only took over one project, offered jobs to the staff and paid them for July out of the goodness of their hearts. I started working for them on 27th July, they argue it was 4th Aug (can prove) and walked out on 7th as, unlike my other colleagues, I didn't get paid for July, still had no contract, access to the intranet, etc. they say they were going to remedy all that but I left too soon. I waited 9.5 days! What if not TUPE? I got no redundancy, notice, holidays from SR and FR is offering to pay for july and up to 7th Aug only. Administrators did not send any info or even a letter saying that SR had gone into administration. Insolvency Fund say there was a TUPE based on my statement. I am not sure this argument is going to work in Court. What other legal argument can I bring into play? thank you.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. What is the constructive dismissal issue?
Customer: replied 1 year ago.
Arrears of pay, redundancy pay, notice pay, holiday pay - automatic dismissal because of TUPE rules
Customer: replied 1 year ago.
Hi Ben
Sorry I was a bit fast sending this as the phone was ringing. I attach something for you. Many thanks
Expert:  Ben Jones replied 1 year ago.
Whether there was a TUPE transfer or not is a question of fact which the tribunal will look into to determine your rights. There either was one or there wasn’t and I think this may be the first thing they look at. In order to be protected, the first requirement is that the person needs to be an employee, which means self employed workers or agency staff will not be covered. They will then only be protected if they are permanently employed in the business (or part of it) that is being transferred. Next, one has to determine if the person is ‘assigned’ to the organised grouping of employees transferring. As there is no definition of what ‘assigned’ means, whether the employee is assigned is essentially a factual question and needs to be determined by taking into account different factors, such as:{C}· The percentage of time spent working in the business being transferred{C}· The amount of value given to each part by the employer{C}· The job description and what the employee is contractually required to do Finally, the business or service that transfers has to continue with the new employer. Therefore, any activities that are currently carried out must continue with the new employer after the transfer. If the business or services changes significantly after the transfer then TUPE protection would not apply. In the case of service changes the service has to be fundamentally and essentially the same before and after the transfer for TUPE to apply. This is a rather complex area of law so unless someone sits down and delves through the exact facts it would be impossible to say with any degree of certainty whether there was a transfer or not. If there was a transfer then you would be able to pursue the new employer for the constructive dismissal claim as they would be liable. If there was no TUPE transfer then you cannot claim anything against the new employer and any claims you have for redundancy, notice, etc will be against the old employer. They would only however be required to pay you if there are assets left to do so and if that is not the case then you would be looking at insolvency fund claim, but only if they were made insolvent. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.
Thanks, ***** ***** TUPE is complicated, but let's say there was no transfer, then the administrators acted negligently as they did not provide paperwork, letters about the company's closure. Could that be dealt with at the same hearing? As for the others, they should have provided me with some reasons for the wait to pay me and provide me with tools to work. 9.5 days is rather long.
Expert:  Ben Jones replied 1 year ago.
Not really, negligence by administrators does not really give rise to a tribunal claim. In tribunal you can only claim for the amounts you are owed had your employment been terminated by that first employer and as mentioned they may not be able to pay it anyway if there were insufficient assets.
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46183
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Thanks
Expert:  Ben Jones replied 1 year ago.
You are welcome, all the best

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