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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50178
Experience:  Qualified Employment Solicitor
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I and most of my colleagues are being tupe'd but

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I and most of my colleagues are being tupe'd but two colleagues have been hand-picked for two new contracts management roles. Should we have the right to apply for the new roles?
Thank you,
Hello, do you mean that the current employer is retaining these two employees and they would not be transferring to the new employer?
Customer: replied 2 years ago.

Hi Ben,

Yes, that's right. I work in IT and we are being multi-sourced. Most of us are being Tupe'd out. Two new contacts management roles were created and two of my colleagues have been picked to take these jobs. No-one else has seen job descriptions or had the opportunity to apply. Do we have the right to see these jobs and apply?

Unfortunately you do not. Whether you are covered by TUPE is a matter of fact and depends on whether you meet the criteria, which I presume you would as you are being taken over by another company. Therefore, you would automatically have to transfer to this new employer. You do have the option of opting out of the transfer but it would amount to a resignation on your part and your employment would terminate at the date of the transfer. In the meantime the current employer does have the right to decide if they want to move existing staff to other jobs not covered by the impending transfer. They are generally free to choose whoever they want and there is no legal requirement on them to advertise the jobs to everyone and treat everyone fairly. They can be selective if they wanted to and the only requirement is that in the process they do not act in a discriminatory manner. This means that their actions should not be based on protected characteristics such as age, gender, race, religion, etc. However, if none of these reasons applied and it was simply a preference due to their skills set, personality, experience, etc it would not be unlawful. The only other point is that if there was a workplace policy which provided for any new opportunities to be advertised and the employer has failed to follow their own procedures, you could complain internally such as by raising a grievance. If, however, no such policy existed then the employer would not be required to advertise these jobs to everyone and they can be selective over who they are offered to. I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Customer: replied 2 years ago.

I have looked at the current staff handbook and this doesn't contain any commitment to advertise new roles.

Thank you Ben. It's not the answer I was hoping for but thank you all the same.

I will leave a positive feedback when I see the feedback form again.

Thank you and sorry it was not what you were hoping for but I hope it clarifies your position. All the best
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