Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Why have they said that TUPE does not apply in this situation?
HI WHEN WE FIRST SPOKE ABOUT MERGING IT WAS STATED WE WOULD BE COVERED UNDER TUPE HOWEVER THE OLD GP AND NEW PARTNERS HAVE APPARENTLY AGREED THIS WOULD NOT BE THE CASE AND HAVE NOT INFORMED US. THE OLD GP RETIRED FRIDAY AND THEN WE WERE TOLD BY NEW GP THAT HE HAD SIGNED OUR RIGHTS TO TUPE AWAY IN MERGER AND WE NEED TO SIGN NEW CONTRACTS TOMORROW
TUPE is a piece of legislation which exists to protect employees' rights if their employment changes hands. This could be because of a sale of the business, or because a new contractor takes over the services provided by their current employer. Examples include:
The situation most likely to apply to you would be the first one where there is a sale of a business. The parties to the sale cannot just choose to sign away your TUPE rights – whether it applies is decided by law, the employers cannot chose whether it applies or not themselves.
To apply, the business or service that transfers has to continue with the new employer. Therefore, any activities that are currently carried out must continue with the new employer after the transfer. If the business or services changes significantly after the transfer then TUPE protection would not apply. Also you must find out if the transfer of the business involved the sale of shares because if it did then TUPE may not apply. However, if it was not a share sale, rather they just bought the assets and goodwill of the old business and continued running more or less the same type of business then TUPE is most likely to apply. I appreciate it is not actually a simple area of law and even many employment lawyers are not keen on dealing with it due to its complexity but hopefully this gives you some clarification.
In the end, even if TUPE does apply you cannot just force the new employer to honour it – if they refuse to then you will have to consider going to the employment tribunal to try and assert your rights but the above can help you in any negotiations before you decide to go down that route.
I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you
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