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Alex J.
Alex J., Solicitor
Category: Law
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Experience:  Solicitors 2 years plus PQE
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Morning. (sorry if the question below is winded) I am a

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Morning. (sorry if the question below is long winded)
I am a director of a company that is being purchased by a large PLC. The existing owner is setting up a New company to transfer the people the new PLC want to keep under TUPE. After 1 week the PLC will purchase this new company and all transferred staff to the new company will transfer again from the new company to the PLC and we will then be employed by the PLC. I am on the list of staff being transferred(only the salespeople and the service engineers are transferring all other engineers and staff are staying in the old companies which will be wound down and these staff will be made redundant.
My existing terms and conditions are supposed to be retained under TUPE and my salary etc will be the same. However unlike all other staff the salespeople and service engineers who's role will be similar with the PLC my role as a director running a separate company will be none existent in the PLC and the new role for me will be as an account manager (salesman) to look after some of our existing key customers.
I have not had any discussions/meetings (other than the announcement meeting on Monday 6th June) and when the question has been asked from the group being transferred are there any other options the answer back is that if we do not transfer then we can resign.
Can you advise if this is correct in my case as I will go from a Director of 20 years since starting the business as a new company for someone I knew in 1996 to a salesman in a massive PLC.
Submitted: 1 year ago.
Category: Law
Expert:  Alex J. replied 1 year ago.

Hi, Thank you for your question and welcome. My name is ***** ***** I will assist you. The affect of a TUPE transfer is that you transfer on the "same terms and conditions" with the same accrued employment rights. Changing your job title is a change of your employment terms. If they say you have to resign because you are not happy about your job title being changed, this could be a constructive dismissal. You would then have to make an employment claim to be compensated - you would have a claim for wrongful dismissal and unfair dismissal, and if they have not actually consulted on the TUPE transfer you would have a claim for up to 13 weeks pay for failure to consult. Ultimately you cannot force them to create the job for you on exactly the same terms, but if they do not they will be potentially liable for an employment claim by you.

Customer: replied 1 year ago.
Hi what constitutes a consultation on TUPE? as we were all given a copy letter of the announcement. It states "in order to coply with their obligations under TUPE, the company and Newco must provide information to representitives of affected employees about the transfers. The company and newco intend to communicate with employee representative's jointly about both transfers given that both companies are in the same group, so as not to overcomplicate the process.
As there are currently no employee representative's in place and neither the company nor Newco recognise any trade union in relation to affected employees the company and newco intend to conduct and election to appoint employee representative's........
What do you advise will be my options rather than the only one offered to me off transferring to the Newco/PLC as salesman which I will not want to do (PS the new PLC has a terrible reputation for customer service and not a good company to work for)
Expert:  Alex J. replied 1 year ago.

Hi, Thank you. Have they given you any information on how the transfer will be affected in writing?

Customer: replied 1 year ago.
only in letter that approx. one week after the transfer date the newco will be sold to the PLC
Expert:  Alex J. replied 1 year ago.

Hi, Thank you. If the transfer has already taken place it does not sound like they have consulted you properly. If you do not want to transfer, the alternative is you reject the transfer wait to be made redundant or you accept the transfer and then resign and claim constructive dismissal. Would you want the hassle of a tribunal claim? If you made a claim they probably would look to settle it with you?

Customer: replied 1 year ago.
the announcement was made Monday 6th june with the transfer to newco expected 4th july therefore iam trying to understand what is an option to the transfer as other that being told we can resign there is nothing else being made?
Customer: replied 1 year ago.
Hi just checking you are working on a reply to the question above about what options I have as the transfer is not until the 4th july to the newco
Expert:  Alex J. replied 1 year ago.

Hi, Thank you. You can refuse to transfer, but if you refuse you will be left in a company that has no business and employees that will be made redundant. For that reason you are better of accepting the transfer and then possibly making a claim - at the PLC has substance and can pay any court order made against it?

Customer: replied 1 year ago.
Not wanting to go to court just need to know what options I have and if I should become a none transferring employee and be made redundant with my colleagues and find another job. can you highlight what is being done wrong by my current employer as he will want to make it as hard for me to work for a competitor or start my own company as I have been with the company for 20 years and know my customers better than him.
Customer: replied 1 year ago.
just thought my 1st transfer is to the newco (set up by my existing boss) as a salesman which will be purchased by the plc what is the significance of the 1st transfer in relation to my options for redundancythanks
Expert:  Alex J. replied 1 year ago.

Hi, Thank you. Do you have any non compete restrictions in your contract? It is not your current employer that is the issue, it will be the new one the PLC if you transfer.

Customer: replied 1 year ago.
no specific restrictions and I am very very reluctant to transfer. Can you confirm that I CAN be included in the none transferring group due to the change in my job title being a change of my terms and conditions and I am not happy about this change.
also what are any other factual options open to me rather than as highlighted the TUPE transfer to the 2 companies or resign, due to MY specific circumstances. The transfer to NEWco and the PLC will be my very last option as it is not going to be a tenable option for almost all of us never mind the great change to my role.
Expert:  Alex J. replied 1 year ago.

Hi, Thank you. If you want to be excluded from the transfer you are entitled to reject it and remain with your current employer. If your current employers is liquidated - who would you make a claim against?

Customer: replied 1 year ago.
sorry Alex to keep replying but the question of what they are doing incorrect is my main question so that know where i stand.I would now hope to be made redundant along with all other not transferring. If I am made redundant I would not make a claim.
please can you confirm/reconfirm what they are doing incorrect, so I know what I can claim now if I need to, and more importantly to make is less complicated can I make a valid request to be made redundant to which they have to accept and on what grounds. Thanks
Expert:  Alex J. replied 1 year ago.

Hi, Thank you. From what you have told be it sounds like they are potentially in breach of regulations 4 and 15 of the Transfer of Under Protections of Employment Regulations 2006. You can only claim voluntary redundancy if it is offered. Are they prepared to negotiate with you?

Customer: replied 1 year ago.
can I keep this question open as I need to check this out?
Expert:  Alex J. replied 1 year ago.

Thank you. I wont close the question, but I would be most grateful if you could rate my answer in the mean time. Kind regards AJ

Customer: replied 1 year ago.
Hi Alex if ok, as we are keeping question open and we are yet to finish I will keep computer open on this page till I can reply.
IF you can explain how I can rate you and still contact you without incurring an additional charge let me know then I can rate to credit you.
Expert:  Alex J. replied 1 year ago.

Hi, Thank you. No problem - I think the link should remain open, but I am happy to wait for whenever you are ready if that is not the case. I look forward to hearing from you. Kind regards AJ

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