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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 73901
Experience:  Qualified Employment Solicitor
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I have been employed 5 years. my employer sent a letter in

Customer Question

I have been employed 5 years. my employer sent a letter in Feb stating my contract incorrectly refers to XXX as my employer, and stated in the letter my contractual employer should be YYY. After receiving this they have now sold the YYY part of the business as a share sale and not XXX. They have said I am no longer part of the XXX business now YYY has been sold. Is this legal?
JA: Have you discussed this with a manager or HR? Or with a lawyer?
Customer: no, I just heard yesterday that they have sold the business and have not had any discussions with anyone yet
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: employee, and no I don't belong to a union
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: I don't think so, thank you
Submitted: 17 days ago.
Category: Employment Law
Expert:  Ben Jones replied 17 days ago.

Hello, I’m Ben. It’s my pleasure to assist you today. I may also ask for some preliminary information to help me determine the legal position.

Expert:  Ben Jones replied 17 days ago.

What are you ideally hoping to achieve in your circumstances? Please note this is not always an instant service and I may not be able to reply immediately. However, rest assured that I am dealing with your question and will get back to you today. Thanks

Customer: replied 17 days ago.
during my employment I have worked for both sides of the business equally i.e. 50/50. there are 2 elements to the business, commercial which is XXX and a franchise which is YYY. It is the franchise side that has been sold
Customer: replied 17 days ago.
I would like to stay employed by the commercial business, and not transfer to the new owners
Expert:  Ben Jones replied 17 days ago.

Thank you very much for clarifying. Were there ever any formal discussions over who your employer should be, such as in the offer at the start?

Customer: replied 17 days ago.
it was agreed that my work and salary would be split between the commercial and the franchise parts of the business
Expert:  Ben Jones replied 17 days ago.

But no discussions over who the actual employer would be?

Customer: replied 17 days ago.
No I’m afraid not
Expert:  Ben Jones replied 17 days ago.

So are they saying you have transferred under TUPE to the new owners of YYY?

Customer: replied 17 days ago.
transferred to new owner on same T&C but not TUPE as it was a share sale and apparently TUPE does not apply
Expert:  Ben Jones replied 17 days ago.

Yes that is correct as share sales are not covered under TUPE. It is a complex situaiotn to be honest as there is no specific or definitive confirmation as to who your employer should have been to start with. If you were employed by XXX for 5 years and this was not picked up, yet just before a potential sale they say you should have been working for YYY, that can be suspicious as it may suggest they were looking for a reason to remove you from the business.

The ain difficulty is that I cannot in any definitive terms state who you should have been employed by – that depends on various factors, some going back to the start and only a court or Employment Tribunal can determine if it should have been XXX, YYY or even both.

The other issue is that to challenge them you may have to refuse to move over to the new employer and resign and claim constructive dismissal, which could be the only way to make a claim. I suggest you approach the employer first, express your concerns about the timing of all of this and make it clear that legal action could follow if they do not resolve this.

It is also worth mentioning that there is a possible alternative solution to this, which could avoid the need for legal action. That is where the employer is approached on a 'without prejudice' basis (i.e. off the record and with protection against these discussions being brought up in future legal proceedings) to try and discuss the possibility of leaving under a settlement agreement. This can be done by asking for a meeting, or it can be done in writing, via letter or email. Under a settlement agreement the employee gets compensated for leaving the company with no fuss and in return promises not to make any claims against the employer in the future. It is essentially a clean break, where both parties move on without the need for going to the Employment Tribunal. However, it is an entirely voluntary process and the employer does not have to participate in such negotiations or agree to anything. There is nothing to lose by approaching this subject with the employer and testing the waters on this possibility - the worst outcome is they say no, whereas if successful it can mean being allowed to leave in accordance with any pre-agreed terms, such as with compensation and an agreed reference.

Expert:  Ben Jones replied 17 days ago.

Hopefully, I have answered your query in a way that is simple and easy to understand. If anything remains unclear, I will be more than happy to clarify it for you. In the meantime, thank you once again for using our services.