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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor
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Do you provide TUPE related issues? UK, it has been

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Hi do you provide TUPE related issues?
JA: Where is this? It matters because laws vary by location.
Customer: UK
JA: What steps have been taken so far?
Customer: it has been proposed
JA: Anything else you want the Lawyer to know before I connect you?
Customer: do you need anymore background?

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. Firstly, I need to ask some initial questions to determine the legal position.

Please provide some more information and tell me how long you have worked for your employer?

Many thanks for your patience. You are correct that there is a law on taking employees over in the event that you take over a business. This is under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (better known as TUPE). It is implemented as domestic law, so it will remain unchanged after Brexit, unless the Government specifically tries to remove it in the future but I doubt that would happen for a few years, if at all.

 

You could indeed discuss with ABC to make some of its employees redundant before the transfer and they can easily pick out those with less than 2 years service as they have no unfair dismissal protection anyway.

 

If you do take over some of their staff but do not need as many, then again you can select those with less than 2 years service for dismissal as they won’t be able to challenge that. Anyone else would have to be treated fairly and you have to place them on par with your existing employees, so you have to go through a formal redundancy procedure with them and treat all employees equally, which means potentially making some of your existing workforce redundant if they perform worst in the selection exercise.

 

Finally, you have a duty to honour the incoming staff’s current contracts and that is another requirement under TUPE. You cannot just use the excuse of harmonisation to try and change them

 

As to your own position, you are just as vulnerable as anyone else with less than 2 years’ service – you can be dismissed quite easily so you will have that hanging oiver you for at least another 6 months unfortunately.

 

Does this answer your query?

Customer: replied 6 days ago.
What should I do with ABC before TUPE and after TUPE? any practical recommendation other than those stated on TUPE?
Customer: replied 6 days ago.
I know I could change the terms and conditions of the contract if the reason is ETO? But how about those working part time? can I also change the working time under ETO?
Customer: replied 6 days ago.
And about the dismissal, so i can just dismissed staff with less than 2 years service? Should I legally do something beforehand?

The main thing to do prior to TUPE is to inform and consult with affected employees and ask for ELI from other employer.

 

ETO is a potential reason but it is very restrictive – you have to provide very solid justification for using it – many things can appear to fall under ETO but rarely would in practice.

 

You can dismiss anyone with less than 2years service as long as it is not linked to things like discrimination, but all you have to do is issue them with the notice they are due, you do not have to do anything specific beforehand

 

Customer: replied 6 days ago.
So, would it be matter if they are working part-time contracts before TUPE? does it make any difference with working part time and full time? Do you think we can just dismiss those working part-time if they reject to work in full time? Or Can I just simply say because of saving administrative and management cost (ETO) so the ETO stands to allow change in terms of contract for working hours?
Customer: replied 6 days ago.
If I want to make employees redundant, who are entitle to redundancy pay?
Customer: replied 6 days ago.
Will taking an initial one year leaseback of ABC's premises, affect the TUPE or any other related to employees??
Customer: replied 6 days ago.
And what would you then recommend us to have those incoming employees' contract changed if not ETO? in practice, under what grounds will be likely to allow us to make a change on their contracts?

You cannot just pick on those who work PT and dismiss them just because they are working PT as that would be unlawful under The Part-time Workers (Prevention of Less Favourable Treatment) Regulations 2000 which requires you to treat employees equally regardless of whether they are PT or FT.

 

In terms of redundancy, it is those with 2+ years continuous service who get redundancy pay.

 

I cannot comment on the leaseback as that is not part of my expertise.

 

As to what changes you can make, you can initially ask them to consent to the changes or at least start to consult with them over what may be acceptable to them and come to an agreement. But it is impossible to give you general advice on what you can or can’t change, this is complex at the best of times, let alone just over a chat service like this one – what may work in one business after one takeover may not work at all in another

Customer: replied 6 days ago.
I have just received one their employment contract, they have 'flexibility clause' in it, stating that the employees may be relocated to any workplace within the company in the County, Does it mean we can just change the location without prior notice?

No you still need to act fairly and consult with them over the proposed changes and then give them reasonable notice before the changes take place

Customer: replied 6 days ago.
Does it mean giving them a notice would be enough? So i dont have to justify it under ETO? or the 'flexibility clause' wont make any difference if TUPE take place?

No you may still have to justify it as an ETO because the trigger is whether the changes are due to the transfer and the answer to that is likely a yes, which means that if it is the case you have to go down the ETO route.

Customer: replied 6 days ago.
I just received another information from ABC, that previously, they have made collective agreements with their employee, including flexible working hours and negotiated redundancy procedures. However, according to the TUPE provided by the ACAS, they mentioned that 'After one year, employers can seek to renegotiate terms and conditions that derive from collective agreements provided that the overall contract in no less favourable to the employee' Does it mean I could not make any changing on working hours and should follow the previous arrangement, and the negotiated redundancy procedures within a year after the TUPE??? I am confused here.

Any collective agreements must remain for at least a year after TUPE, before they can be renegotiated with the employees and/or unions but you cannot make them less favourable tan they are now

Customer: replied 6 days ago.
Thanks and really help a lot!!! Do you have any final advice when consulting to affected employees, and negotiating for any changes and redundancy?

It’s a very, very general question to be honest but a very, very general answer would simply be to make sure you are clear and concise, be direct with the proposals (i.e. don’t skirt around the issues) and take notes of everything you do or say

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