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Small Business TUPE headache

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  • Small Business TUPE headache

    Hi, We own a small corner shop and we are selling the business soon.
    I believe the new owner requires family to work in the shop to make the shop financially viable.
    One member of staff (out of 5) is being TUPE’d across – buyer wants the most experienced member.
    The issue is with the member of staff being TUPE’d across.
    The others are ok, 3 worked for less than 2 years and we’ve given them 1 weeks notice and are happy.
    The other has worked for 2.5 years and is ok with the 2 weeks notice and extra payment he is getting.
    We consulted with staff with regard the shop sale as early as possible - when we were quite sure the shop will happen although before it is legally certain.
    We talked to the most senior (worked for us for 9 years) she seemed ok and would meet with the new owner.
    The new owner is meeting with her to discuss her future role in the shop.
    BUT - She and her husband came in the yesterday, not very happy
    They asked why she was the one going across, They said that all the staff should have been transferred across or they all should have been made redundant. I said the new owners asked for the most experience member of staff and they needed to employ family for the remainder roles.
    They said as she had been so loyal to us over the years she should have her redundancy and then the new owners should also take her on.
    Her husband said he had spoken to a solicitor friend.
    They said that she was chosen because she was the most expensive to get rid of.
    She is on the shop sale contract for her hours and rate of pay (minimum wage plus £1.80, she gets this due to some additional responsibility).
    She has said to me several times previous that if someone takes over she would not want the additional responsibility. I’ve told the new owners this and he will discuss this with her during her meeting, expecting to reduce her rate to minimum wage. I’m sure this is for them to discuss and decide as she is being TUPE’s on her current rate.
    She has said to me and my wife previously that she doesn’t want to work for Asians and they reiterated this adding that they would just push her out.
    I can’t see we’ve done anything wrong and have tried our best for her, she just doesn’t want to work for Asians and wants her redundancy. We were going to give her a bonus in her final pay, but not now.
    Have we done anything wrong?
    Tags: None

  • #2
    Tagging Ula & mariefab
    In the meantime I thought that if you were selling a business the staff were tupe'd across to the new owner, and it was for the new owner to declare the positions were redundant (and in this case they don't appear to be so as his/her family will be filling the positions).
    But wait for the experts comments!


    • #3
      If you are selling your business to new owners, then all your staff are covered by TUPE. What should happen is that all your staff transfer automatically to the incoming employer. Their terms and conditions of employment (apart from occupational pensions) and continuity of service transfer with them and they also receive certain protections around dismissal and redundancy.

      An example which may be relevant to your situation is that Mr A bought Mr B’s newsagents and two employees transferred across under TUPE. Mr B dismissed both employees on the day of the transfer and engaged two members of his own family to do their work instead. The dismissals were found to be automatically unfair in this case because the employees were dismissed as a direct result of the transfer. If the reason for the dismissal isn’t the transfer, it won’t be automatically unfair, but it may still be an unfair dismissal if the employer hasn’t followed a proper redundancy or dismissal procedure.

      In terms of the process it was good you consulted with your staff. However, you as the outgoing employer effectively making pre-transfer redundancies at the request of the incoming employer, put yourself in a difficult situation as these could be considered as unfair dismissals for those with the qualifying period of employment. This is because the law does not allow the outgoing employer to rely on the incoming employer’s reasons for the dismissal.

      Where the incoming employer intends redundancies after the transfer, redundancy consultation may begin before the transfer if the outgoing employer agrees but the redundancies must only be made after the transfer by the incoming employer.
      I do my best to provide good practical advice, however I do so without liability.
      If you have any doubts then do please seek professional legal advice.

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      • #4
        James, you might find this interesting and informative

        When a business changes owner, employees could be protected under the Transfer of Undertakings (Protection of Employment) regulations (TUPE) - types of transfers, your rights, contracts, redundancy, where to get help


        • #5
          Hi James,

          I work on a free employers helpline were always happy to advise on these matters.

          The number is ( NUMBER REMOVED ) .. give us a call if your unsure.


          • #6
            KBarr - please contact admin if you would like to consider being allowed to advertise on the forum - Spam postings are simply not welcome.

            James - we recommend ACAS for helpline assistance
            The Advisory, Conciliation and Arbitration Service is a Crown non-departmental public body of the Government of the United Kingdom

            Acas provides free and impartial information and advice to employers and employees on all aspects of workplace relations and employment law.
            Contact ACAS


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