tupe transfer

[teaboy2]

Re: tupe transfer

Hang-on a minute, just thought a bit more about what he said - Why was the brewery trying to give him a contract, as surely the contract would not be with the brewery but with the landlord of the pub, at the time the contract was offered? So what hes saying doesn't make sense, unless of course the brewery was at the time acting as the landlord? As what hes saying is that the Brewery was his employer at the time the contract was offered.

Also if he never signed a contract, then his hours are not contracted hours either and can be changed to suite business needs, just like workers can be asked to work extra hours when needed they can be asked to work less too if no fixed contracted hours are in the contract. He can argue custom and practice all he likes, but as he never had any contracted hours he would have to prove it was implied he would be granted x amount of hours per week and prove he was an employee and not a worker. In regards to what he said about the contract, he would have to prove that he sent said contract back asking for the clause to be removed (Recorded delivery) without that then it will likely been deemed that he had not sent it back and simply didn't return a signed copy and therefore silence is deemed acceptance of the terms of that contract and hes only now saying this about his contract in an attempt to avoid his hours being reduced. Which is foolish of him, as it leaves you no choice but to make his position redundant - So you need to find out why he sent it to the brewery and not his employer (The Landlord at the time) and whether the brewery received the contract with the letter asking for the clause to be removed.

If it turns out he was an employee of the brewery at the time, and not an employee of the landlord whom you took the business over from, then TUPE is not a question here as he will still be an employee of the brewery, which if that is the case, then the brewery should be paying his wages. Off course i doubt he was an employee of the brewery anyway, and i think hes trying to cloud the water by saying he sent the contract back to brewery and that they were trying to get everyone on contracts, which doesn't make sense as the Landlord is the employer not the brewery, unless off course the Landlord was merely a manager working for the brewery too. So who did you take the pub business over from, the previous landlord or the brewery?

[jaxkevla]

Re: tupe transfer

He was employed by the company we work for as they had the tenancy from the pub chain, and it is them that transfered him over to us the contract was with them

[teaboy2]

Re: tupe transfer

Is that company the brewery? Or the previous landlords?

[jaxkevla]

Re: tupe transfer

The company that leases off the brewery i.e. the company we are employed by on a self- employed basis, they then transfered him over to us so he has never worked for the brewery as they lease off a pubco.

[teaboy2]

Re: tupe transfer

The company that leases off the brewery i.e. the company we are employed by on a self- employed basis, they then transfered him over to us so he has never worked for the brewery as they lease off a pubco.

Right so basically in his letter he is clearly lying when he says the brewery tried to get them to sign the contract as the contract was from the company that leased the pub from the brewery prior to yourselves taking over the lease. So hes saying he sent the contract and the letter asking for the clause to be removed to the bewery when he should have sent it to the previous landlord of the pub. If thats correct, then as he failed to return it to the landlord who was his employer and sent it to the brewery who were not a party to his employment, then by not returning a copy to the previous landlord along with the letter asking for the clause to be removed, then the landlord never received back a copy of written statement objecting to the clause or the new contract. As such regardless of whether he signed it or not, his failure to return the contract to the landlord (his employer at the time) means he accepted the contract via his silence and lack of written objection to the clause.

He can not say he objected to it by sending the contract and written objection to the brewery as they were not his employer, and any reasonable man of sound mind would not make such an obvious error as to who his employer is, therefore it is likely that his story is untrue and merely an attempt to breach is contractual obligations by deliberating misleading you.

Simply write back to him again, explaining to him that his previous employer was the previous landlord as named on the contract (Point out it is required in law for the employers name and address to be on the contract along with the employees), and not the brewery and as such he should have registered his objection in writing within a reasonable time frame to his then employer (The previous landlord). As he failed to do so then he is in law deemed to have accepted the contract as he had failed to inform his previous employer who had given him the contract that he objected to the the clause regarding lay offs and short time work within a reasonable time frame. As such the clause is valid and part of his contract of employment.

Make it clear that you find it highly unlikely that a man capable of reasonable thought and of sound mind, especially when the employers name and address is on the contract, would mistaken his employer as being the brewery (Pub Company who leases the pub to LandLords) when it is clearly obvious that the employer was the Landlord as he was the leaseholder at the time. And would then proceed to send the contract and written objection to the Brewery whom are not even a party (Or even named as a party in the contract) to his employment and therefore have no say whom the landlord employs or under what contractual terms those employees are employed under.

Also make it clear that you feel that the content in his previous letter is merely an excuse to get out of his contractual obligations. Also State, that as far as you are concerned, the fact he did not send the contract and written letter of object to the previous Landlord (His then employer) then the contract is still valid. Again offer him the reduced hours, making it clear that this is your final offer to him and that if he continues to refuse, then you will have no choice but to start redundancy proceedings.

Make sure you keep a copy of the letter he sent you where hes saying how he sent the letter to the brewery along with a copy of the contract.

Also as for his allegations of materiel detriment he is off course referring to reduced hours and therefore less pay, but your defense is business financial and economic reasons, and your offer is to avoid making him redundant so your offer of reduced hours is the better of the two. As for consultation before transfer, it is for the previous employer and new employer to inform employee effect about the transfer, but there is not clear definition under TUPE as to a time frame other than reasonable time frame prior to the date of the transfer taking place to allow those effect to seek advise etc - There is no actual minimum period required under the regulations.

[jaxkevla]

Re: tupe transfer

Thanks for that it does need to be sorted although, i feel inclined to just send him a letter saying that he hasn't responded to my previous letter as he pushed it under the door not handing it to me in person so could say haven't received no matter where he says he has left it.I have to follow rules on this so why does he think he can get away with not handing it to me so no proof of receipt.

[jon1965]

Re: tupe transfer

I am a bit confused here. Who exactly has the lease for the pub, it seems from what you are saying that you are self employed but run the pub. This is a trick done by many a holding company who then pay you a % of the take but rely on you to pay all staff wages etc. There was a time, in a previous life where I had a lot of dealings with these types of pub companies.

A lot of the letter seems rather fake and the sort of thing written by a rank amateur who is trying to appear all powerful and all seeing .

Personally i wouldn't get into the game of pretending you haven't seen his letter, thats a lie and as they say "the truth will out"

[teaboy2]

Re: tupe transfer

Thanks for that it does need to be sorted although, i feel inclined to just send him a letter saying that he hasn't responded to my previous letter as he pushed it under the door not handing it to me in person so could say haven't received no matter where he says he has left it.I have to follow rules on this so why does he think he can get away with not handing it to me so no proof of receipt.

Under no circumstances do you lie and say you did not receive the letter - The content of that letter is good evidence for you in regards to him admitting to returning the contract and his letter of objection to the brewery and not to the then employer. Do as i say in my last post.

Also can you clarify things in regards to the points raised by jon1965?