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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45353
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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What criteria is applied to a role to apply in an

Customer Question

What criteria is applied to a role for Tupe to apply in an outsource situation. My role is currently subject to Tupe but I believe a large part of my role will no longer be my responsibility.
Submitted: 10 months ago.
Category: Employment Law
Expert:  Remus2004 replied 10 months ago.
How long have you worked there please?
Customer: replied 10 months ago.
11 Years
Expert:  Ben Jones replied 10 months ago.
Hello, my name is ***** ***** my colleague has asked me to assist with your query as it is more my area of law. Can you please provide more details of what has happened and what has raised these concerns?
Customer: replied 10 months ago.
Hi Ben
The company I work for have taken the decision to outsource they entire global IT operation. With the exception of myself my entire team are being made redundant. My role is currently subject to TUPE. I do not wish to transfer to the outsource company and understand under TUPE law that this would mean I am in effect handing my notice in. What I need to understand is how TUPE is applied to a role. It is my understanding that a large percentage of what I do would no longer be my responsibility, also my area of support would be reduced from supporting our Middle East, Nordic, South African, Russia and India offices to just the UK and Ireland. I would like to know if there is any point in me continuing to challenge this.
Expert:  Ben Jones replied 10 months ago.
Why are others being made redundant but you are not - what differs between you and them?
Customer: replied 10 months ago.
I am the only one with the role defined as an EUT. The others have roles within the infrastructure team which will no longer operate in the future state. The EUT role (Desktop support) does feature in the future state which is why Tupe has been applied. My argument is that although the role would continue in the future state it would be in what I feel a much reduced capacity with a lot of things I do being moved to other support functions
Expert:  Ben Jones replied 10 months ago.
In order to be covered, 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. I think this would be the argument you rely on in your circumstances to try and show that TUPE does not apply. This is your basic legal position. I have more detailed advice for you in terms of some relevant case law you could use in your support, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45353
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 10 months ago.
Many thanks. Positive rating given
Expert:  Ben Jones replied 10 months ago.
Thank you. Some relevant examples below: A reduction in the quantity or scope of post-transfer activities may influence whether or not a service provision change has occurred and TUPE applies. In Ward Hadaway Solicitors v Love and others the tribunal held that there was no service provision change on the award of a contract for future legal services to a new law firm where the outgoing law firm retained work in progress and the future work was reduced in scope from the previous work. In Department for Education v Huke and another, a contract to provide IT support services to the Department for Education expired. Over the life of the contract, the work had diminished to the extent that there was only one person assigned to it. By the time of the transfer he had very little work to do. A small amount of work was going to continue once the services had been taken back in-house, but this was only expected to amount to 25% of full time hours for one person. The tribunal held that changes in the volume of work are relevant when considering whether or not the relevant "activities" continue to be carried out. If the reduction in the quantity of work is substantial enough, it may lead to the conclusion that the activities being carried out are not essentially the same as before.
Customer: replied 10 months ago.
Thank you. That is helpful advice.
Expert:  Ben Jones replied 10 months ago.
You are welcome, all the best

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