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Jenny
Jenny, Solicitor
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Redundancy due to outsourcing

Resolved Question:

My company is being restructured and I am at risk of redundancy due to outsourcing. I can't be bumped and I am the only person in my company with my skillset. They still want my skillset from the outsource company.

Can I be made redundant due to outsourcing?

Shouldn't I instead be made redundant due to the restructuring (or whatever ETO reason for TUPE) which would then leave them free to outsource?

Submitted: 2 years ago.
Category: Law
Expert:  Jenny replied 2 years ago.
Hello my name is ***** ***** I am happy to help you this evening. How long have you worked for the employer for?
Customer: replied 2 years ago.

Over 11 years

Expert:  Jenny replied 2 years ago.
Are you saying that the outsourcing company is planning to take you over on a TUPE transfer but you do not want to go?
Customer: replied 2 years ago.

My company have not even asked them yet even though I am now facing my 2nd individual consultation meeting. I have asked then several times to establish my TUPE position and they just say they think they have an ETO reason to cover any TUPE

Expert:  Jenny replied 2 years ago.
Sorry I'm not clear, your employer thinks there is an ETO reason or the company that you may be outsourced to?
What outcome do you want to achieve?
Customer: replied 2 years ago.

They seem to think that because they are restructuring the company due to economic reasons that they can make me redundant because they want to outsource my job.

I don't know what I want. I would prefer they didn't outsource my role at all but failing that I would want to be TUPEd over first. I didn't think they could make me redundant and avoid their TUPE obligations

Expert:  Jenny replied 2 years ago.
Are you the only employee affected?
Customer: replied 2 years ago.

I am the only employee left who hasn't taken voluntary redundancy in my department. My role is unique though.

Does restructuring constitute a valid ETO reason for them not to TUPE me over first?

Expert:  Jenny replied 2 years ago.
No it does not , it is not for the transferor (your employer) to determine an ETO it is for the transferee (outsource company).
An outsourcing arrangement can amount to a tupe transfer if the role you are doing will be done in the same way by the company they transfer to . If the new company say they will not take responsibility for you and the old employer will not pay redundancy then the correct route, albeit annoyingly is to bring a claim against BOTH parties and let the Tribunal decide who is responsible for paying for your redundancy pay and also likely further unfair dismissal compensation.
You would need to engage ACAS pre-claim conciliation first.
The main point is that your employer cannot have their cake and eat it. Either you are redundant with redundancy pay or you transfer.
If you have any further questions please do ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.
Customer: replied 2 years ago.

If the new company don't want me OR they don't even ask them if they want me and I am made redundant with redundancy pay by my current employer anyway. Is that legal? Or can I claim unfair dismissal?

Expert:  Jenny replied 2 years ago.
Yes in those circumstances you can claim that TUPE ought to have applied and claim unfair dismissal against the Transferee (outsource company).
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