Thank you for your ANSWER to my original Employee X TUPE-based Employment Law QUESTION. While I had some difficulty with various specifics in the syntax and vocabulary of your ANSWER, I trust that I have clearly and fully understood the bot***** *****ne as fundamentally stating that A CLAIM BY EMPLOYEE X VERSUS EMPLOYER LA FOR AN EQUAL PAY LUMP SUM [EPLS] PAYMENT ON THE BASIS OF A TUPE ‘DUTY OF CARE’ OBLIGATION IS NOT LEGALLY COMPETENT!!
However, while readily accepting NOT LEGALLY COMPETENT in strict TUPE terms, before accepting a NOT LEGALLY COMPETENT final closure position on the overall circumstances of my original QUESTION, I would appreciate an opinion on whether a fully ‘COMPETENT’ LEGAL CLAIM does in fact apply for Employee X versus Employer LA based on an alternative NON TUPE line of argument as follows.
Basically the alternative line of argument is founded on the cornerstone actuality that the ex gratia ‘duty of care obligation’ EPLS Payments which were made by Employer LA individually to their directly employed Female School Cleaners [Employees DE] effective as at the 2006 Equal Pay legislation [as shoulder-to-shoulder colleagues of by then CS-employed Employee X] were indisputably in recognition of and strictly on the basis of each individual Employee DE’s direct employment by Employer LA as a Female School Cleaner prior to Equal Pay legislation – even if direct employment with Employer LA commenced AFTER Employee X’s TUPE Transfer to Employer CS in 2001.
Of course in these terms Employee X in principle also FULLY QUALIFIES for an ex gratia ‘duty of care obligation’ EPLS Payment by Employer LA, on the basis of her 5 years direct employment by Employer LA [1996 – 2001] prior to her ‘no choice’ TUPE Transfer by Employer LA to Employer CS in 2001.
MY FOLLOW UP QUESTION therefore : Does Employee X have IN PRINCIPLE a legally valid (‘competent’) claim versus Employer LA for a ‘duty of care obligation’ EPLS Payment in the foregoing terms PURELY ON THE BASIS OF HER DIRECT EMPLOYMENT AS A FEMALE SCHOOL CLEANER BY EMPLOYER LA FROM 1996 – 2001, AND THEREFORE PRIOR TO EQUAL PAY LEGISLATION IN 2006??
NOTE The gross unfairness and injustice should Employee X NOT qualify for an Employer LA ‘duty of care obligation’ EPLS payment in these circumstances is hugely emphasised by various extenuating factors, the most blatant of which is the fact that various of Employee X’s colleague Female School Cleaners as at TUPE Transfer Date 2001 chose Unemployment rather than TUPE Transfer to Employer CS.
HOWEVER THESE SAME FORMER COLLEAGUES WERE SUBSEQUENTLY DIRECTLY RE-EMPLOYED FROM SELF-CHOSEN UNEMPLOYMENT BY EMPLOYER LA, PRIOR TO EQUAL PAY LEGISLATION DATE 2006 – AND – WITH SIGNIFICANTLY LESS TOTAL DIRECT EMPLOYMENT WITH EMPLOYER LA THAN EMPLOYEE X AS AT EQUAL PAY LEGISLATION DATE, STILL STRAIGHTFORWARDLY QUALIFIED FOR ‘DUTY OF CARE OBLIGATION’ EPLS PAYMENTS FROM EMPLOYER LA!!