private company going limited

[jts]

On behalf of a friend

has worked for the same company for 20 years, 7 as self employed and 13 as employed, he has no contact of employment.
It looks as though the company are going limited, and are known to be in financail difficulty,
Where will he stand in case of redundancy if a new company os formed ?
What if the company goes limited, and then closes ?

thanks

[Guest]

Re: private company going limited

Did the seven self-employed years come first to be followed by the thirteen years as an employee?

How many other employees does this company have?

[jts]

Re: private company going limited

Did the seven self-employed years come first to be followed by the thirteen years as an employee?

How many other employees does this company have?

7 years self employed first
around 8

[Guest]

Re: private company going limited

There is always a contract between an employee and employer. Just because he does not have anything in writing does not mean a contract does not exist. This is because an agreement to work for an employer and an employer’s agreement to pay for work forms a contract. An employer does have to give all employees a written statement within two months of anyone starting work and the statement must contain certain terms and conditions.

If the company is going to close, it really will not matter much whether he is employed by a non-limited or limited company, as if there is no company, there will be no employment.

He may still be entitled to statutory redundancy pay, under the Employment Rights Act 1996 but until something happens, it is impossible to be certain.

[jts]

Re: private company going limited

If it is a new company, will he be entitled to his rights for the last 20 years ?

[Paule]

Re: private company going limited

With ref to the 7 years Self employed for the company, this can , and has, been determined to count as being employed by the company in a recent case.
(although it was regarding taxation)

details here -> Legal Beagles

[Guest]

Re: private company going limited

According to the TUPE Regulations (The Transfer of Undertakings (Protection of Employment) Regulations 2006) employees' continuous service and accrued employment rights will be unaffected by a transfer under TUPE and the terms and conditions of employment that existed prior to the transfer will apply unaltered after the transfer.

The TUPE Regulations "apply to a transfer from one person to another of an undertaking in the United Kingdom or a part of one which is so situated" [Regulation 3 (1)]. A working definition is that the TUPE Regulations apply when responsibility for providing a service or managing a particular function or activity (an undertaking), is transferred from one organisation to another.

Employees have an automatic right to transfer to the new employer and by implication they are, therefore, not redundant, even if they refuse to transfer.

[stevokenevo]

Re: private company going limited

What if the company goes limited, and then closes ?

thanks

If the company goes limited, and then closes, there will be a stewards enquiry.

Cant see that happening to be honest

[Paule]

Re: private company going limited

A bit more on TUPE

Outgoing employer must inform and consult with staff

Employers involved in a business transfer must inform and consult with appropriate representatives of the affected employees about the transfer and any measures proposed. Certain specified information must be provided to the representatives long enough before the transfer to enable the outgoing employer to consult with them about it.
If there are any changes or proposals for changes following the transfer, these "measures" will have to be discussed with the representatives of the affected employees The incoming employer is required to provide the outgoing employer with information on proposed measures to allow the outgoing employer to comply with their duty to inform and consult. There is no set timetable for consultation, but the larger the transaction and the more staff affected, the longer the timetable will need to be.
If there is a failure to inform and consult, a complaint can be made to the Employment Tribunal. If successful, the Tribunal can award whatever compensation it considers just and equitable having regard to the seriousness of the employer's failure up to a maximum of 13 weeks' pay per affected employee. Information and consultation failures can now result in joint and several liability between the outgoing and incoming employers, unless the contract governing the transfer clearly caters for apportionment of liability here.

TUPE in insolvency

Finally, the new Regulations have relaxed TUPE to protect incoming employers where the exiting employer is insolvent. The liability for redundancy, notice and other payments to employees will not transfer to the incoming employer. Also, if it is agreed with the trade union or employee representatives, terms and conditions of employment can be changed (without an ETO) if the change is designed to save a failing business. The idea is that companies will be more inclined to "rescue" insolvent businesses, thereby safeguarding employment, where the inherited liabilities are not so onerous.

If you want additional guidance on your rights, you could try ACAS, which runs a helpline on 08457 47 47 47 to answer employment questions in confidence