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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47354
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I work in cargo and it has recently been confirmed that our

Customer Question

I work for BA in cargo and it has recently been confirmed that our jobs will be tupe'd out to Mumbai. The supplier has been named and the proposed transfer date is 1August2016, although no contract has been signed yet.
My job involves computer based work as well as physical checks of freight in the warehouse and assisting and escorting HMRC in their inspections. Our management have identified a need for a London based role and said they will create 12 positions for the checks and HRMS part of the job on a new contract for a lot less money, therefore only a part of our job is to be tupe'd.
My question is can they do this or does a TUPE have to be the whole job like for like transferred to the new supplier.
Management have also confirmed there will be no redundancies offered, if after the TUPE we do not wish to move and work In Mumbai it will be up to the new supplier to offer us redundancy on their rate of pay (£3k a year) and their equivalent to their government statutory.
We have a union involved who have just brought in the full time officers, but I honestly have no faith in them and the communication between all parties has been very poor.
The management have no idea what we do in our jobs, they have been employed recently to come in and make cost savings and us 90 people involved are the guinea pigs to see if they can cut the staff on old contracts without paying VR which last year was offered to all managers and Operational staff
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. How long have you worked there for?
Customer: replied 1 year ago.
9 years
Expert:  Ben Jones replied 1 year ago.
ok let me consider this I will reply shortly
Expert:  Ben Jones replied 1 year ago.
TUPE is one of the most complex laws in the UK so it often causes endless headaches. I will try to keep things simple rather than overwhelm you with legal jargon and hopefully that will still explain your position in some detail. It appears that you are involved in a service provision change, where services are being outsourced. This can trigger TUPE, however certain requirements must be met for that to happen. First of all there is no requirement for the job to be like for like and exactly the same for it to result in a TUPE transfer. First of all there has to be an organised grouping of employees moving, so basically situations where there was a team of employees that are "essentially dedicated" to carrying out the activities that are to transfer. It excludes cases where there is no identifiable grouping of employees, which would make it difficult to identify who transfers on a change of contractor. Secondly, the activities that transfer must be essentially the same after the transfer. So if part of the job is moving to a new supplier, they must continue carrying out more or less the same activities that you did before the transfer. This would only cover the services that are transferring rather than the full job you did. So if they are transferring the computer based work then the new provider must essentially continue carrying out those activities for TUPE to apply. Thirdly, to transfer you need to have been assigned to the organised grouping of employees that is moving. This is a question of fact, so there is no specific percentage of work you must have done on the transferring services to qualify. There is an issue if an employee only works partly in the business that transfers, as they would transfer on their existing terms (including all jobs you did) but the transferee would only need them to do part of their previous job. The solution might be to change the employee's terms of employment or make the full-time role redundant and replace it with a part-time role. So you could still transfer to the new business but have to be made redundant from the full role you did and only be offered a contract with the transferring parts of the business. So it is not that straightforward. What the employer has done is potentially legal especially as they can transfer only part of the business. It does mean you either have to accept the transfer or object to it and remain in the business in whatever position they have remaining. This is your basic legal position. I have more detailed advice for you in terms of the optins you have to challenge this, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
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Customer: replied 1 year ago.
Thankyou, I just left a rating. Sorry for not being able to send a tip but my circumstancs are hard being a single mother of a young child with no money in my account :( had to borrow the money from someone to sign up to here so apologies for that :)
Expert:  Ben Jones replied 1 year ago.
Thank you and please do not worry about a tip, it is never expected. So in terms of where to take this, ideally you should try and use the union as much as possible because at least they are free and even if they are not helping as much as expected they are still there to be used. Internally you also have the formal grievance procedure that you can follow with the employer. This is basically raising a formal complaint to them to be dealt with internally. If there is a group of you affected by this then it would be better if you all stuck together and progressed this as a group as the employer will find it more difficult to deal with you rather than with individuals and it would be harder for them to pick on anyone. Legally, your only feasible option after the transfer is to reign and claim constructive dismissal. I completely understand that this is not always a viable option because you will be putting yourself out of a job but it I an option should you feel you have no other options but to resign. You may then consider making the claim in tribunal. The fees are not cheap unfortunately but you have the advantage of using ACAS in the lead up. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal. If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here: https://ec.acas.org.uk/Submission/SingleClaimantPage In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits (3 months from termination in your case)

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