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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 44957
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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A former employee (of a Ltd co.) is considering taking her

Customer Question

A former employee (of a Ltd co.) is considering taking her case to an employment tribunal.
New Ltd company started trading in late 2014. Company purely employs staff and subcontracts them out to another group company within the catering industry.
Prior to late 2014, employee in question was employed by another staffing agency that also subcontracted staff to a related Ltd company for catering purposes. The company went in to liquidation in 2014 and all staff were offered new employment contracts with the new company, which was in no way related to the former.
The only connection between the two is that the new Ltd catering company purchased assets from the former. No client contracts were transferred or sold.
Does TUPE apply and is the employee entitled to redundancy?
Submitted: 8 months ago.
Category: Law
Expert:  Ben Jones replied 8 months ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. What is she claiming for and when did her employment terminate?
Customer: replied 8 months ago.
Her employment terminated in January 2015, so she had been in employment for 1 year, 5 months with my company. She is considering a claim for redundancy and notice period under unfair dismissal. The former employee is claiming she worked for the company since 2009, however it only begin trading in 2014. Can you tell me if TUPE applies under the circumstances? I am led to believe it does not.
Expert:  Ben Jones replied 8 months ago.
At what stage of the process is she - how do you know she is intending on claiming?
Customer: replied 8 months ago.
Yes I've had an early reconciliation call from ACAS.
Expert:  Ben Jones replied 8 months ago.
TUPE could apply when one company goes insolvent and another takes over but usually that would be limited to situations where the company has been taken over as a going concern, i.e. a company is rescued by another to keep it going. If you had just bought assets and did not continue undertaking the same business as the former company then TUE is unlikely to apply. Another point to mention is that this person may actually be out of time to make a claim. A claim for unfair dismissal must be submitted within 3 months of the date of dismissal. A claim for redundancy pay must be submitted within 6 months. The conciliation process with ACAs will put a hold on these time limits as long as it is commenced within them and it will restart them once the process finishes. So if her employment terminated in January 2015 and there has been no formal claim or conciliation until recently, she is most likely out of time to make the claim anyway, whether TUPE applied or not. I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 8 months ago.
I really need to know if TUPE applies or not to have a satisfactory answer to my question. I had already researched myself and found that it may apply in certain circumstances but really need a yes or no answer which is why I've looked for legal advice.The new companies carry out the same work as the former. However it was a completely new entity and no contracts were purchased from the former. The employee was legally employed by a staffing company in both cases.
Customer: replied 8 months ago.
Also we are nowhere near the 3 months yet. She was dismissed late January and we are still in March, so only 2 months in to the time limit.
Expert:  Ben Jones replied 8 months ago.
You mentioned above her employment terminated in January 2015?
Expert:  Ben Jones replied 8 months ago.
Anyway, looking at the legislation, employees of a transferor that is subject to "bankruptcy proceedings or any analogous proceedings" lose the key protections of regulation 4 of TUPE (the automatic transfer principle, which protects them and automatically transfers them over o a new employer). The effect of regulation 4 of TUPE not applying in these circumstances is that employees do not automatically transfer to the transferee and the transferee will not inherit the transferor's rights, duties, powers or liabilities under or in connection with the employees' contracts. TUPE will only usually apply if there was a sale by an administrator/liquidator where they are saving the business, but not if it had closed down and its assets redistributed amongst new buyer(s). So in your case it is unlikely to apply. Hope this clarifies?
Expert:  Ben Jones replied 8 months ago.
Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.
Expert:  Ben Jones replied 8 months ago.
Hello, do you need any further assistance or are you happy with the above response? Look forward to hearing from you.

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