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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I wsd tuped to a company in 2009. They then sold to another

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I wsd tuped to a company in 2009. They then sold to another company in 2011. No mention of tupe this time but our contracts (5 of us) are worse than other staff in same department that were there already. If we were not made aware of tupe does that mean we should be on the same contracts as everyone else now.. esp as we are facing redundancy and our payout will be 50% less than everone else's.. (mine will actually be less than the goverment statutory limit due to capping as I havebbeen there 22 years)? Plus my job is not actually changing but they are making us reapply to keep essentially the same job on less money..?
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. Whether you had transferred via TUPE or not, there is no obligation on the employer to put you on the same contract as its existing employees - there is simply no law that says they have to do this and in both cases they could have kept you on your existing terms which you worked on when the company too over. So I am afraid you cannot claim that you have to be ut on the same contract and be entitled to the same terms.

In terms of the redundancy whether the employer is acting fairly would depend on whether they can show that there is a genuine redundancy situation. The term 'redundancy' is used to describe a situation in which an employer decides to reduce the number of its employees. There are various reasons as to why redundancies may be required, such as economic pressure, changes in the nature of products/services offered, internal reorganisation, workplace relocation, etc. The reason for the proposed redundancies will rarely be challenged and the employer will simply have to justify that the actual reason satisfied the statutory definition of a redundancy, which can be found in The Employment Rights Act 1996:



1. Business closure – where the whole of the employer’s business is closed


2. Workplace closure – closure or relocation of one or more sites


3. Reduced requirement for employees to carry out work of a particular kind (this is where many employees get confused as they believe a job has to actually disappear for them to be made redundant).



The third reason above creates the most challenges. Examples of when there is a reduced requirement to do work of a particular kind are:



  • The same amount of work remains but fewer employees are needed to do it. This includes consolidating some of its jobs (e.g. spreading out certain jobs amongst existing employees).

  • There is less work of a particular kind and fewer employees are needed to do it (both the work and the headcount shrink)

  • There is less work of a particular kind, but the same number of employees are required overall.


 


So as long as the employer can show that their situation fell within one of the accepted reasons for declaring a redundancy, the test will be satisfied and the focus then shifts on the remainder of the redundancy procedure. This would include what consultation took place, whether any suitable alternative employment was offered to those at risk and the general fairness of the redundancy procedure applied by the employer.

Finally, you cannot get less than the minimum statutory redundancy pay you would be entitled to in the circumstances - that is the legal minimum, it is what you are entitled to as a minimum, so you can calculate yours here:

https://www.gov.uk/calculate-your-redundancy-pay

Customer:

Two further questions.. when you say abput alternative ploument being offered.. does that actually mean being "offered" an alternate role or does it mean being given the chamce to "apply" for another role? And if it is in essence the same job but for less money is that classed as "fair"

Ben Jones :

it is not a guarantee of a job, you are offered a job and can apply for it and be considered with others, but if the job is for less money then you do not have to accept it and can opt for redundancy instead

Customer:

Second question. Assume.there are 30 people in a department and the restructure means only about 8 jobs will remain. Five of those 30 people already do that re with the remainder doing differing roles but the company decides to put everyone in the dept at risk of redundancy for fairness. Is that fair though when those 5 people should be mapped over knto the new roles as they already do the job?

Ben Jones :

the employer does not have to 'map' employees into new roles and they can just ask everyone with the relevant skills to apply for the jobs

Ben Jones, UK Lawyer
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Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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