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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47351
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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TUPE - We are shortly providing store management and distribution

Resolved Question:

TUPE - We are shortly providing store management and distribution for a new contract that we have recently been awarded. We have identified that we will have to transfer 4 out of 6 staff and the transferee. I just wanted to understand how I can be sure that we are taking on the correct employees from the Transferor. 4 are without question as they are logistics operatives and this is what we require however the Transferor has informed us they have a Integrated Stores Manager who in their opinion will 50% of working time is dedicated to provision of services under the contract. Can you advise how we can test this ?
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 remaining 50% spent on?
Customer: replied 1 year ago.

I believe this is working for his current employer but on another contract.

Expert:  Ben Jones replied 1 year ago.
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 Whether an employee transfers is a question of fact, depending on various issues. There is no specific percentage of time which an employee must devote to a business unit before being regarded as assigned to it and it is not clear whether an employee will be "assigned" to the organised grouping where they only spend part of their working time working for that grouping. As such, there is no real way to test this – only a court or tribunal can provide a definitive answer so you will have to use your best judgment to decide and may eventually have to take a risk and let this be challenged, which in reality may never happen. Some more useful information on this here: https://www.employmentlawwatch.com/2014/10/articles/employment-uk/the-end-of-the-percentage-argument-in-tupe-negotiations/ 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
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