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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47041
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Having worked for heating co. for 16 years as office manager

Customer Question

having worked for heating co. for 16 years as office manager the business is being sold to refrigeration co.The contract for the sale has not been signed as yet but the current owner is calling our small staff together tomorrow to inform them there might be a sale imminently, as he only checked on his TUPE duties yesterday!! although he has been in talks with new owner for 5 months. I have had no contact with new owner at all and i believe that my duties and responsibilities have NOT been passed on. i have the title Office Manager however along with my colleague, the works manager, we have been running the business on a daily basis for the many years and have been decision makers (except vehicle purchase). We negotiate contracts, hire and fire employees, negotiate pay, do purchasing, invoicing, pricing, credit control, disciplinaries, customer liaison, complaints, quotations. We arrange training and accreditation to bodies such as Gas Safe Registration, ISO9001:2000 etc. this list is not full extent
The only thing we don't do is the banking and the purchase of vehicles for the company this is done by the MD who comes in one or two mornings a week. in a nutshell I need to know how to deal with this meeting tomorrow as I believe the new owner has not even given our current owner any of his plans for us or measures that he may have in mind, especially if he thinks \i am no more than a admin clerk and tries to TUPE me under those terms. Thank you I know I have rambled a little!!
Submitted: 9 days ago.
Category: Employment Law
Expert:  Ben Jones replied 9 days ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 9 days ago.

What are you ideally hoping for, given the circumstances?

Customer: replied 9 days ago.
I suppose given the circumstances if the new owner has employed a 'clerk of works' to oversee this new branch of his company and if he does not appreciate the major role that I have currently, i may in effect be demoted. I am 60 years old and with my length of service would accept redundancy or even better a 'golden handshake with garden leave.
Customer: replied 9 days ago.
You did deal with a problem for me two years ago when the current owner tried to sell the business to my colleague and I then turn very nasty when we turned him
down
Expert:  Ben Jones replied 9 days ago.

OK, thank you for your response. Leave it with me for now and I will review the relevant information and laws and get back to you at the earliest opportunity. As before, there is no need to wait here as you will receive an email when I have responded. Also, please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 9 days ago.

Hi there it actually appears you never rated the previous question I helped with so I was unfortunately never paid for it. If you can access it still are you able to do so please, then I can continue with the latest issue, many thanks

http://www.justanswer.com/uk-employment-law/929iy-when-boss-turns-when-cannot-mbo-uk.html

Customer: replied 9 days ago.
of course i will i thought it was taken, my apologies
Expert:  Ben Jones replied 9 days ago.

no problem at all and many thanks for sorting that out. So going back to your query, if TUPE applies to a transfer, those employees assigned to the transferring business will automatically move to the new employer on their existing contractual terms and conditions. Simply put, the new employer would 'step into the shoes' of the old employer and the employees should start working for the new employer as if nothing had changed, apart from the name of their employer. They would also preserve their continuity of service and the time with the old employer will form part of their continuous service.

This is the ideal outcome, although post-transfer difficulties can often arise. For example, the new employer may wish to try and change some of the incoming employees’ terms and conditions as they may not necessarily agree with the terms they were entitled to under their old contracts. However, under Regulation 4(4) of TUPE any changes are automatically void if the sole or principal reason for them is the transfer.

The only circumstances under which an employer may wish to try and introduce changes are:

· If they were unconnected to the transfer; or

· If they were necessary for an economic, technical or organisational (ETO) reason, subject to employee agreement or the terms of the contract permitting the change.

Some employers may try and justify making changes by arguing that they are needed in order to harmonise the transferring employee’s old terms with the new employer’s standard terms. However, Government guidance and case law has restricted the application of harmonisation as a genuine reason to amend a person's terms of employment. Harmonisation will only be a valid reason if there is a change in the workforce and this must involve change in the numbers, or possibly functions, of the employees. In practice, relatively few contractual changes would involve such changes so harmonisation will rarely be used as a justifiable reason.

If the changes are part of a wider reorganisation which has nothing to do with the transfer, then they may be effective. The longer the gap between the TUPE transfer and any reorganisation, the greater the chance that the causal connection will be broken. However, there is no specific period after which it is safe to say that the connection with the TUPE transfer has been broken, as the test is whether the change is connected to the transfer. The mere passing of time does not in itself break the connection.

If there are concerns about the fairness and validity of any changes introduced by the employer following a transfer, a formal grievance can be raised with the employer. Following that, the main option to pursue this would be by resigning and making a claim for constructive dismissal in the employment tribunal.

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss the steps you need to take if you are to make a claim. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

Customer: replied 9 days ago.
Hi Ben I don'y know if you can read the question i sent 2 years ago, things did settle down a little but he was still 'marking' my work etc however we did regain control of day to day works and after three of our engineers quit because of his behaviour he reverted to two mornings a week. the last 5 months have been very difficult as my colleague and i had heard rumours that he had found a buyer, this he denied until about 6 weeks ago when he had no choice but to tell my colleague that the prospective owner wanted to talk to him. Our MD told my colleague not to tell me at this point however my colleague felt duty bound to tell me a few days later as he believed that not doing so would be both unfair and would have a detrimental effect on our working relationship should it become known. We challenged the MD about the situation and he did say someone was interested and they were in talks but he didn't know anything else. His attitude though is as it was 2 years ago, he actually said ' expect everyone here will know about this within the week' we told him that it was his job to tell the workforce not ours. When asked about the position of the employees he said 'well all with go with him i suppose' it was not until yesterday that he approach someone about his TUPE duties - he didn't think he had any and probably still thinks that less than a week before he wants to sign the contract and he hasn't had any information from the buyer with regards ***** ***** measures or staffing levels. Also at what point do I confirm my role as is so that the incoming owner is aware of my job description and responsibilities? Do I wait until eventually introduces himself and tells me his plans and if they don't match do I tell him at that point that he has made my role redundant and should therefore pay me redundancy or should i tell him that ti reign with immediate effect and will be taking it to a tribunal for constructive dismissal?
Expert:  Ben Jones replied 9 days ago.

I would say that until you know with certainty your role won't be kept, you cannot do much. This may not actually become apparent until you are formally told about it by the new employer or actually start the role. Once that becomes clear I suggest the redundancy route fist as you would resolve the matter to your satisfaction then, whereas having to resign and claim constructive dismissal can be more difficult, but it is there as a last resort if needed. Hop this clarifies?

Expert:  Ben Jones replied 8 days ago.

Hello, I see you have read my response to your query. Please let me know if this has answered your original question and if you need me to discuss the next steps in more detail? In the meantime please take a quick second to leave a positive rating by selecting 3, 4 or 5 stars above. The question will not close and I can continue with my advice as discussed. Thank you

Expert:  Ben Jones replied 7 days ago.

Hello, not sure if you are having trouble seeing my posts? Do you need any further assistance or are you happy with the response to your query? I look forward to hearing from you. Thanks

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