How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Ben Jones Your Own Question

Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46763
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
29905560
Type Your Law Question Here...
Ben Jones is online now

we have 2 staff members that should be transferred under TUPE

Resolved Question:

we have 2 staff members that should be transferred under TUPE law, we have lost the contract they worked on for 85% of their employment. We do not want to transfer them as we can continue to employ them on other work. Both staff want to stay with us.
Can we refuse to transfer the employees? whilst fully maintaining their employment status with us. Or must the employees refuse to transfer and resign from their employment and be re-employed by us under new contracts.
We do not want to issue new contracts as one of them has worked for us over 35 years.
What problems could we encounter from the incoming employer in respect of compensation for not transferring the 2 staff members.
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Does the new employer insist on taking on these employees?
Customer:

I have not asked them yet

Ben Jones : Ok thanks let me get my response ready please I will post on here early this afternoon thanks
Customer:

thank you, Tina

Ben Jones :

There are a couple of ways in which you can get to keep the employees (or for them to stay with you if that is their preference). One is to show that TUPE did not actually apply to the specific circumstances and that the employees would not be covered by it. However that may be unlikely if such a big proportion of their work is being taken over by the new employer and you are looking at a rather complex and technical argument to find a way around that.

The other is for the employees to object to the transfer and opt out. This means that they are refusing to take up their rights under TUPE and do not wish to transfer to the new employer. It would then be deemed that their contract is terminated at the date of the transfer and they would not have to take u a job with the new employer. Usually, if the previous employer does not want to keep them on either then it means they would be left with no job but if you are happy to keep them on then you may offer them re-employment on their existing terms as soon as their contract ends (i.e. on the date of the transfer). As there was no dismissal, nor a break of a week or more, there would be no cessation of their continuous employment and they can remain working with you, keeping their continuous service and associated rights. But the key is to ensure that you have offered them their job back and they have started working for you again on the date they should have transferred to the new employer.

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

Customer:

Excellent, many thanks.

Ben Jones :

you are welcome

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46763
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Jo C.

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
< Previous | Next >
  • http://ww2.justanswer.com/uploads/EM/emus/2015-7-7_192327_bigstockportraitofconfidentfemale.64x64.jpg Jo C.'s Avatar

    Jo C.

    Barrister

    Satisfied Customers:

    30316
    Over 5 years in practice
  • http://ww2.justanswer.com/uploads/BE/benjones/2015-12-1_0437_ennew.64x64.jpg Ben Jones's Avatar

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    11553
    Qualified Solicitor - Please start your question with 'For Ben Jones'
  • http://ww2.justanswer.com/uploads/BU/Buachaill/2012-5-25_211156_barrister5.64x64.jpg Buachaill's Avatar

    Buachaill

    Barrister

    Satisfied Customers:

    1754
    Barrister 17 years experience
  • http://ww2.justanswer.com/uploads/JO/jojobi/2013-3-19_0265_maxlowryphoto.64x64.jpg Max Lowry's Avatar

    Max Lowry

    Advocate

    Satisfied Customers:

    894
    LLB, 10 years post qualification experience
  • http://ww2.justanswer.com/uploads/UK/UKLawyer/2012-4-12_9849_F2.64x64.jpg UK_Lawyer's Avatar

    UK_Lawyer

    Solicitor

    Satisfied Customers:

    750
    I am a qualified solicitor and an expert in UK law.
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    402
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Lawyer

    Satisfied Customers:

    8199
    LL.B (Hons), Higher Prof. Dip. Law & Practice