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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50191
Experience:  Qualified Solicitor
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I am a 64 year-old stonemason and have worked employer,

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I am a 64 year-old stonemason and have worked for my employer, a funeral director, for over 30 years. He is selling his business. The buyers do not want to take me on: they want to carry out funerals but not continue with the memorial stonework. However, my present employer, after the sale of the business, wants to continue with the memorial work (as he feels obliged to complete a sizeable backlog of work) and has asked me to work for him. I presume this would mean the formation of a new business. If I were to go along with this arrangement, would I lose the 20 years’ worth of redundancy build-up that I now have if, after the backlog has been cleared up, my employer decided to cease trading in a year or so, or would I be deemed to have been employed by the same employer for the entire period and thereby able to claim the maximum 20 years’ worth of redundancy payment?
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Would you continue working as an employee or self employed?
Customer: replied 2 years ago.

I would be an employee

Hello, sorry I was offline by the time you had replied. You are likely to be protected under a law known as TUPE, which is a piece of legislation existing to protect employees' rights if their employment changes hands. This could be because of a sale of the business, or because a new contractor takes over the services provided by their current employer.
In order to be protected, the first requirement is that the person needs to be an employee, which means self employed 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 organised grouping of employees 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 part of the business being transferred
• The job description and what the employee is contractually required to do
Finally, the business or service that transfers has to continue with the new employer. Therefore, any activities that are currently carried 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.
Assuming the above apply then your employment would automatically transfer to the new employer and with it your current contractual terms and conditions and you will also preserve your existing length of service. So if the new employer then decides to make you redundant your previous length of service will be taken into account and your redundancy payment should reflect that, rather than just the year you have worked for them.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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