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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48754
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My team is currently part of one company that is being

Resolved Question:

My team is currently part of one company that is being transferred to another company under TUPE. I am leading the team that has an outstanding track record and we have just started the consultation process last week. Prior to the consultation, I realised that some of my team members had been approached and asked questions that could be considered a solicitation as well as the intention to split our team up. At the first consultation, it was confirmed that our team would be split up and hence, I will undergo what I personally consider a demotion as my team leader responsibilities are taken away from me. I am deeply unsatisfied with this and consequently, I have started to look for a new job right away. However, I wonder what my rights are and whether there are any legal means to express my dissatisfaction with the situation? I think there could be grounds for a constructive dismissal, but it seems to be a bit unclear as “substantial job” is a rather subjective term.
Submitted: 24 days ago.
Category: Employment Law
Expert:  Ben Jones replied 24 days ago.

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

Expert:  Ben Jones replied 24 days ago.

Who has made these approaches?

Customer: replied 24 days ago.
A director from the other company. It is worth noting that while we are talking about a transfer between two distinct companies, both companies are part of the same group (i.e. have the same owner).Another thing that may be worth knowing: The consultation process is supposed to take 4 weeks. Right after the first consultation, one of my team members received an email welcoming them to their new team.
Expert:  Ben Jones replied 24 days ago.

ok thanks leave it with me please I will reply shortly

Expert:  Ben Jones replied 24 days ago.

Thanks for your patience. Your only way to challenge this would indeed be through claiming constructive dismissal. This can be a tough claim though as the burden of proof is entirely on you to show that there was a serious enough breach to justify that.

In a TUPE situation you can expect to transfer to the new employer with your existing terms and conditions remaining intact, so it would be a claim that this right has been breached that would prompt constructive dismissal.

Another important consideration is that in such a claim you are mainly compensated for your loss of earnings from having to leave. Therefore, if you find a new job soon enough (which you are expected to consistently try to do), these losses will be greatly reduced and may make the prospect of making a claim somewhat pointless.

In terms of voicing your concerns over this, you can do this directly to the new employer but as you are nit their employee yet you will not be able to force them to deal with this or address it in any way. You will have to wait until the move has taken place and the changes have taken place to do so.

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 follow if you were to initiate the claims process. 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 23 days ago.
Thanks for the answer.Just a couple of other questions:
1) A don't think a constructive dismissal would give room for any compensation as this is not a case of breach of contract but rather substantial and detrimental change to employees’ working conditions. Do you agree or disagree with this?2) I think that the correct way to proceed would be to first claim constructive dismissal and then afterwards unfair dismissal as was done in the Tapere case. Could you briefly comment on this?
Expert:  Ben Jones replied 23 days ago.

1. A substantial and detrimental change to employees’ working conditions is effectively a breach of contract, even if not a breach of a specific contractual term. Often constructive dismissal claims result from a breach of trust and confidence and that can easily result from such drastic changes

2. The Tapere case was quite fact specific so it is not easy to claim constructive dismissal and then unfair dismissal - that is not how it usually works. The claimant was not even intending to do this and it just so happened that this was the outcome there. Ideally you would want to be claiming unfair dismissal as the burden of proof is then on the employer to show it was not unfair so they have to disprove the claim.

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