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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 49779
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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When buying a limited company what are legalities surrounding

Customer Question

When buying a limited company what are legalities surrounding sacking an existing employee within the company? What are the options? Look forward to hearing from you ASAP please. Rachel Warshow
Submitted: 4 years ago.
Category: Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones :

Hello, my name is Ben and it is my pleasure to assist you with your question today.

Ben Jones :

Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know whether you are hoping to sack this employee?

JACUSTOMER-43by1v67- : Please reply on [email protected]
JACUSTOMER-43by1v67- : I imputed the incorrect email address. Please confirm.
Ben Jones :

I cannot change your email address unfortunately, you have to contact customer services but we can continue on here regardless, you do not need an email address to see my responses

JACUSTOMER-43by1v67- : Ok great
Ben Jones :

Why do you want to sack the employee?

JACUSTOMER-43by1v67- : The employee is not right for the post .
Ben Jones :

is the post going to change from what it was before the purchase?

JACUSTOMER-43by1v67- : Yes, other members of staff can cover the responsibilities . She is not motivated nor has the adequate competencies .
JACUSTOMER-43by1v67- : to be utilised within the company
Ben Jones :

How long has she worked there for?

JACUSTOMER-43by1v67- : Approx 1 year.
JACUSTOMER-43by1v67- : Can we make her post redundant?
Ben Jones :

are you buying the shares of the limited company?

JACUSTOMER-43by1v67- : yes
Ben Jones :

ok just need to get my advice ready, won't be long

JACUSTOMER-43by1v67- : Ok thanks
Ben Jones :

If she has been continuously employed at her place of work for less than 2 years then her employment rights will be somewhat limited. Most importantly, she will not be protected against unfair dismissal. This means that her employer can dismiss her for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because she was trying to assert any of her statutory rights (e.g. requesting maternity leave, etc.). In the event that the reason for dismissal fell within these categories, then the dismissal will either be automatically unfair, or there will be a potential discrimination claim.

If the dismissal had nothing to do with any of the above exceptions then she would not be able to challenge it and her only protection would be if she was not paid her contractual notice period. Unless she was dismissed for gross misconduct, she would be entitled to receive her contractual notice period. If she did not have a written contract in place she would be entitled to the minimum statutory notice period of 1 week. Her employer would either have to allow her to work that notice period and pay her as normal, or they will have to pay her in lieu of notice. She will also be entitled to receive any accrued holidays.

You can make her position redundant and use that as a further reason for the dismissal. She would not be entitled to any redundancy payment as she does not have 2 years' service.

JACUSTOMER-43by1v67- : Ok so to summaries if I make the most redundant and pay her her notice period and any accrued holiday then I can get rid of her straight away?
Ben Jones :

yes you can, she does not have the required service to claim unfair dismissal

JACUSTOMER-43by1v67- : So she only do that if she had been employed more than two years?
Ben Jones :

correct, employees need 2 years' continuous service to be protected against unfair dismissal

JACUSTOMER-43by1v67- : Would I need to supply anything in writing to her?
Ben Jones :

you should simply confirm her dismissal, her end date and what she is entitled to be paid

JACUSTOMER-43by1v67- : ok, how should I verbalise the redundancy ?
Ben Jones :

you do not even need to mention that, but if you wanted to mention it you can state that there is now a diminished requirement for employees to do her specific post and as a result she is being made redundant

JACUSTOMER-43by1v67- : ok great. Have you heard of something called the tooly rule with regards to limited companies( don' think I spelt tooly right)?
Ben Jones :

I think you mean TUPE, this protects employees who transfer when the employer changes, but the same rules apply - if they have less then 2 years service they are not protected against unfair dismissal

JACUSTOMER-43by1v67- : thanks it! Ok thanks. TUPE does not apply here?
JACUSTOMER-43by1v67- : sorry keep miss typing with my ipad
Ben Jones :

TUPE does not apply to a share sale of a company, but even if it applied you may still dismiss the employee as she cannot claim unfair dismissal anyway

JACUSTOMER-43by1v67- : What does TUPE stand for?
Ben Jones :

The Transfer of Undertakings (Protection of Employment) Regulations

JACUSTOMER-43by1v67- : Ok thanks, is there anything else that you think I should know about with regards to this?
Ben Jones :

No, it is a pretty simple process, just make sure you are not making a decision based on discriminatory grounds, for example because of her gender, race, a disability she has, etc

JACUSTOMER-43by1v67- : We are definition not basing this on any of those grounds. . She just is not right for the company based on her lack of core competencies to warrant keeping her on.
Ben Jones :

ok that is fine then, my earlier advice still applies

JACUSTOMER-43by1v67- : Great. You have been very helpful and I will leave positive feedback.
Ben Jones :

You are most welcome, all the best

JACUSTOMER-43by1v67- : Hi, is it ok if I leave this chat open for today just in case I have any more questions regarding this ?
Ben Jones :

you can come back to me anyway, the chat will not close even if you rate

Ben Jones :

I hope this has answered your query. Please take a second to leave a positive rating, your question will not close and you can get back to me at any time with follow up quesitons. Thank you very much