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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44941
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I am closing my ltd company down, re-opening a new ltd company.

Customer Question

I am closing my ltd company down, re-opening a new ltd company. On the front of the building I had to change the name last year and my facebook, twitter and tripadvisor name. I will still be trading at the same address,doing the same thing. As there is a new legal entity I know everyone will need new contracts. Can I use this opportunity to not re-employ a difficult employee who has been with me less than 2 years? Could she try and sue the new company?
Submitted: 1 year ago.
Category: Law
Expert:  Alex J. replied 1 year ago.
,
Thank you question and welcome.
My name is ***** ***** I will assist you.
Are you transferring all the employees to the new limited company? Are you transferring the business as a whole to the new limited company i.e assets, customer contracts etc?
Kind regards
AJ
Customer: replied 1 year ago.

There is one other employee I wish not to keep. It is a restaurant. Assets are not being transferred I don't think but being bought by the new company.

I am retaining 7 members of staff including myself and my husband plus a new full time member who started last week. The 2 I'm hoping not to reemploy are part time.

Expert:  Alex J. replied 1 year ago.
,
Thank you.
The problem you have is even if you are transferring the lease or ownership of the building with the business inside to a new limited company the employees may be protected by the Transfer of Undertaking Protection of Employment Regulations 2006. https://www.gov.uk/transfers-takeovers/overview
If the old company is insolvent there may be grounds , but if you specifically looking to get rid of her, You may be better off doing it before you make the transfer or waiting a few months after you making the transfer and terminating her employment on the grounds of misconduct. You would need to follow a proper procedure and evidence.
Under the TUPE regulations if you terminate someones employment because of the transfer it opens you up to potentially huge liabilities .
Is there any way you could just agree a compromise with her and pay her to leave? This would undoubtedly be cheaper than facing a tribunal claim.
I look forward to hearing from you.
Kind regards
AJ
Customer: replied 1 year ago.

What reasons can I give her to leave? Do I have to have a reason? She made a threat to another member of staff that if I ever sacked her she would report me to hmrc paying taxes. The old company is insolvent number of reasons out of my control. She handed in her notice and left in October while on holiday, she returned and worked a weeks notice. Her last day I think was a Friday. She started a new job on the Sunday morning, by Sunday afternoon she begged job back. Because she was having a hard time personally I was soft and took her back on. Basically I want a way I can safely get rid of her.

Expert:  Alex J. replied 1 year ago.
,
Thank you.
Are the issues with her personal or performance related?
Kind regards
AJ
Customer: replied 1 year ago.

I wouldn't say personal, she is still at school and works part time. I have I have another at school they are both 18 and one he is in his 20's but at college. When they break they all take holiday or days off without consulting me. Whether I have enough staff to cover the restaurant floor effectively. Even recently, all 3 had a Saturday off and I was left 2 short that night. Not great restaurants reputation. When I have said you can't take time off unless I have cover she sends messages saying I can't tell them they can't have time off. I know they are allowed time off but I should have some say when its possible. She is forever threatening me with solicitors If I do anything. Even taking on this new member of full time staff. Her messages to me have got me angry. The 3 part timers have lost a couple of shifts while I train my new full timer as my one other full timer is on holiday. I feel I need someone full time who wont take time off without consultation and leave me with difficulties. She wanted to have a meeting with all 3 of them but I said if they have any grievances I will see them separately however she made the insinuation I was too afraid to talk to them together. Of course that's not the case I felt it would be more constructive separately. But this thing about reporting me, dictating who I employ and the hours is intolerable.

Expert:  Alex J. replied 1 year ago.
,
Thank you.
I am going to refer this to one of my colleagues - he is an employment expert and can talk you through the best course of action.
I will message him now.
Kind regards
AJ
Expert:  Ben Jones replied 1 year ago.
, my name is ***** ***** my colleague has asked me to assist with your query as it is more my area of law.
Can you please confirm exactly when this person started working and what notice period do they have in their existing contract?
Customer: replied 1 year ago.
Ben, I don't remember the exact date however u fluent open my restaurant till and of feb 2013. Less than 2 years. She started in the spring after that. She left end of October this year, worked one weeks notice. Finished on a Friday. Had 1 shift at waitrose on the Sunday. By Sunday afternoon she was begging job back. Which like a fool I gave because she had personal issues. She started back again that week. Could be beginning of November. I don't have the dates with me.
Expert:  Ben Jones replied 1 year ago.
No problem, thanks. Whilst my colleague’s advice is correct, the fact that she has less than 2 years’ continuous service will mean that her rights are rather limited. Generally, you cannot dismiss an employee who is protected under TUPE if the reasons so are linked to the transfer but if they do not have the required 2 years’ service then they are not protected against unfair dismissal so they will not get the usual protection under TUPE either. Therefore, you are legally able to terminate her employment, without having to provide any specific reason or follow a fair procedure. All you have to do is give her the contractual notice she is entitled to, or if one is not mentioned, it would just be a week’s notice. You also have to pay her accrued holidays and pay up to date.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Expert:  Ben Jones replied 1 year ago.
, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else in relation to this? I just need to know whether to close the question or not? Thanks

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