TUPE

[Skewbald2003]

I knpw TUPE law is very complex, I had a preliminary hearing yesterday before being referred to a hearing next September.* My old boss purchased the company of my ex boss which was a dormant company. I was taken on by this new company but was never consulted about TUPE. He purchased the side of the company I worked for and I was transferred over to work with him, he made me redundant last July with an hours notice and no pay. I had worked for the previous company for 4 1/2,Years and a further 18 months. So 6 years in total, he is refusing to acknowledge TUPE but he purchased the company and staff, is this covered by TUPE? He is saying it isn't covered and I only worked with him for 18 months, my argument is I never had a break in service and I was sold along with the company am I correct*

[ULA]

To qualify as a business transfer in this situation:

1. The identity of the employer must change. For the TUPE
2. *There has to be an identifiable set of resources (which includes employees) assigned to the business or to a part of the business which is transferred, and that set of resources retains its identity after the transfer to the new organisation.

I presume your claim is in regard to redundancy pay?

At the preliminary hearing was the issue of whether TUPE was applicable raised by the respondent? I would have assumed if this was the basis of his argument this would have been mentioned or was it other facts that needed to be established during the prelim hearing?*

[Skewbald2003]

Thank you for replying. It is to do with redundancy, we had a prelim hearing yesterday and he stated he has paper work stating that TUPE doesn't apply this was from the previous company owner. He purchased a dormant company name but took staff with him from the previous company. He is adamant that my previous service is irrelevant. The judge did tell him that it isn't down to the people he purchased the company from to state if TUPE applied or not. I'm confused as to whether he is right or not! I always understood TUPE applied if you transferred to another company who had taken over I have been TUPE'd twice before with no issues
*

[ULA]

As you say TUPE is very complex so can you just clarify did your boss A (boss that made you redundant) a) purchase a dormant company owned by boss B or b) did boss A restart a dormant company he owed to take on the business of boss B?

If it was a) then you could not have been employed by a dormant company so what company did you work for? Is the company that you worked for still in business and has that been retained by boss B? Was it just the part of the business that you belonged to that was sold to boss A?

Just need to get my understanding of your situation clear so sorry for the further questions.*
*

[Skewbald2003]

Boss A didn't make me redundant he sold one part of the company I was working for to Boss B along with a dormant company name, which he restarted.

The business I was made redundant from is still running but he changed the name, last year.*

[ULA]

Sorry talking about old bosses and ex bosses is very confusing at least for me. I need to understand the situation in terms of the company relationships, so it would be easier for me to talk about Co A and Co B.

So, in those terms if Co B, a restarted dormant company, purchased part of the business including staff from Co A then reverting back to my post #2 the situation meets point 1. in that you have a new employer and in regard to point 2. as an employee you are an identifiable resource. However one other thing to consider is, did you and your colleagues continue what you were doing prior to the transfer after the transfer happened with Co B?
*

[Skewbald2003]

Hi Ula

Company B purchased a dormant company and took staff from company A to start the business my colleagues and I carried on doing the work we were previously doing for A but with a new owner if that makes sense*

[ULA]

So if the part of the business you were working in with Co A was sold to Co B (which was a restarted dormant company) and you carried on doing the same work in Co B then in my view there is the potential that TUPE will apply.

Did the judge provide any further clarification in the prelim hearing? Sometimes if there is a question as to whether TUPE applies or not this will be dealt with at this hearing but it does not sound like that happened in this case.*

[Skewbald2003]

That is correct. The judge did mention that TUPE needed to be investigated either in a separate hearing or the one for unfair dismissal. I decided I really didn't want to see my old boss anymore than necessary... He was a very nice person to work for, so it was agreed that it would all be dealt with in a 2 day hearing in September 2021. A long way off though!*

[ULA]

Unfortunately the Tribunals in some areas are very back-logged and i fear the current situation, with many Tribunals closed or only progressing with telephone hearings will only add to the problem.

*

[Skewbald2003]

Hi Ula thank you for your help. I think the judge at the preliminary hearing was getting annoyed with my old boss he didn't want to listen or accept TUPE.* He says he has it in writing from company A that TUPE doesn't apply, the judge asked him to send this to me but I am still waiting! The judge told him it isn't up to each individual company if TUPE applies or not... But he didn't want to listen*

[ULA]

You know where we are if you need any more help through this process, just come back to this same thread as it makes it easier for us to see what has gone on previously, particularly as there will be periods of inactivity.

If you have a Case Management Order (CMO) already or you receive one in due course make sure you get the required actions done and relevant documents sent off by the deadlines this is very important. Also make sure that any correspondence to the tribunal is also copied to the respondent and any to the respondent is copied to the tribunal.

[Skewbald2003]

I need to compose a schedule of loss for tribunal. What can I include in the claim, I was made redundant with no notice although I had beed there 6 years but TUPE'd. I also didn't have a contract of employment with my new employer. Does anyone have a template I could work to or know where I can find one. Thank you in advance

[ULA]

Hi Skewbald2003 I have merged your two threads together as it makes it much easier for those of us advising to have all related points on one thread.

I have attached a template Schedule of Loss which you can use and complete accordingly. If you have any questions whilst you are going through this then please just come back to this thread.

Claimant Schedule of Loss.doc

[Skewbald2003]

Thank you