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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 75915
Experience:  Qualified Employment Solicitor
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I have been asked to attend a redundancy meeting due to my

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Hello, I have been asked to attend a redundancy meeting due to my organisation believing that they can outsource my position for better value. Would tupe apply in this case, please? I run a marketing department in house.
JA: Was this retaliation? Or based on age, race, religion, gender, or disability?
Customer: no
JA: What kind of workplace is this (private sector, public sector, etc.)? How many employees?
Customer: NGO
JA: Where are you located? Workplace termination laws vary by location.
Customer: uk
JA: Is there anything else the Lawyer should know before I connect you? Rest assured that they'll be able to help you.
Customer: no

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.

How long have you worked there for? 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 as soon as I can. Thanks

Customer: replied 5 days ago.
2 years
Customer: replied 5 days ago.
I'm happy with a text answer, thank you

Many thanks for your patience, I am pleased to be able to continue assisting with your query now. First of all, I am sorry to hear about this situation and any associated issues.

TUPE Regulations protect employees' rights if their employment transfers from one employer to another. This could be because of a sale of the business, or because a new company takes over the services provided by their current employer. Examples of TUPE ‘transfers’ include:

- Simple sale of a business where one business takes over another (except if it is done by selling the company’s shares). The nature of the business must remain sufficiently similar after the transfer

- Contracting out of a specific service, where the employer engages a contractor to carry out specific activities they had previously carried out themselves (the opposite, contracting in, would also be covered)

- Change of contractors - where certain services move across from one contractor to another, so the employer changes who they use to provide a specific service

In order to be protected, the first requirement is that the person needs to be an employee, which means contractors, casual workers or agency staff will not be covered. They will then only be protected if they are permanently employed in the business (or part of it) that is being transferred.

Next, one has to determine if the person is ‘assigned’ to the business or services which are transferring. As there is no definition of what ‘assigned’ means, whether the employee is assigned is essentially a factual question and needs to be determined by taking into account different factors, such as:

- The percentage of time spent working in the business being transferred, although there is no specific cut-off value

- The job description and what the employee is contractually required to do and, most importantly, what they actually end up doing in reality

Finally, the business or service that transfers has to continue with the new employer. Therefore, any activities that are currently carried by the undertaking which transfers out must continue with the new employer after the transfer. If the business or services changes significantly after the transfer then TUPE protection would not apply. In the case of service changes the service has to be fundamentally and essentially the same before and after the transfer for TUPE to apply.

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.

Customer: replied 5 days ago.
Thank you for your reply.So, simply put: I have been employed for 2 years with an organisation as the director of their marketing department. They have sent me a letter to begin consultation on redundancy because they believe that "outsourcing of current activities within the department can be more cost effective for the current rate of return"Does this mean that I am entitled to be TUPE'd to the company they outsource it to or not as there has been no mention? Thank you

When you say 2 years can you clarify exactly when you started, please?

Customer: replied 5 days ago.
Wednesday 11th of September 2019

Thank you very much for clarifying. Assuming that this new company takes on your role in the same form as it is now, or in a substantially similar one, then you should indeed be looking at TUPE and can raise that with them now

Customer: replied 5 days ago.
Thank you Ben, and what’s the best way of raising that, please? In writing?
Customer: replied 5 days ago.
Can I ask to see what they propose ie what the country offer is?
Customer: replied 5 days ago.
Counter*

Ideally yes, it should be in writing but you can start it off verbally if necessary. Once you get an idea of where they stand and if they have any intention on even considering TUPE you can then discuss any potential offers or how to resolve this in another way

Customer: replied 5 days ago.
Thanks Ben, and last question. If they don’t intend to TUPE but still intend to outsource what can I do

If your employment terminates as a result, it would then mean a claim for unfair dismissal in the Employment Tribunal

Customer: replied 5 days ago.
Ok, thank you for all your help Ben

You are most welcome. If you have any further questions about this, please do not hesitate to get back to me and I will be happy to help. All the best

Customer: replied 5 days ago.
Thanks Ben

My pleasure

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 3 days ago.
Hi Ben,
I received the following reply from my employer in response to my request for clarification on TUPE"Following our meeting yesterday and your question about a service provision TUPE arrangement our legal team have provided the following response.
If you have not outsourced his role, or part of his role then I do not believe this would be a service provision change under TUPE regulations.You have clearly stated that part of the role would be outsourced as and when needed, so that does not seem to be a definitive TUPE transfer.It would also depend on the percenatge of his role that would be outsourced, so for example if it was only 20-30% of his usual role outsourced on an as and when basis, this may not fall under a TUPE service provision change.As we have previously said, no firm decisions have been made at this point so we have no contracts in place for the provision of any services which your role may be part of. If no alternative solutions are deemed viable, it should also be noted that your role is multi-faceted, and we would not be looking to seek provision from a single source for those aspects which we would need help for on an as an when basis."I take it that means I have no case, even though they propose to outsource?Regards,
Mark

Hi there, you cannot argue you have TUPE protection until the role has actually been outsourced. They may be proposing to do so in the future, but until that happens, you have no rights to argue it. Therefore, it is possible for them to make you redundant, not immediately outsource the role and only do so in the future, by which time it would be too late for you as your employment would have already terminated.

Customer: replied 3 days ago.
Thanks Ben.
Is there a time limit on them doing that after making me redundant and if so, can it be disputed if they do it within that timeframe? It seems like there's very little protection for the employee.

Not really, but you have 3 months from termination to claim
for unfair dismissal if needed. So if they quickly seek to outsource the job
after your redundancy and they would have known that and should have held on to
allow you to transfer, assuming it all happens within these 3 months you can
challenge them if necessary

Customer: replied 3 days ago.
thanks Ben

Most welcome