Offered TUPE instead of redundancy

[Roberto154]

Complicated one this.
My role is now at risk and I was told that this was delayed because of the lockdown happening.
So going back to March when all the members of my team were TUPE’d over to another company apart from me, should I have been given the opportunity to go across too in a role that was advertised by the 3rd party that ‘looked’ similar to my current role?

If I raise this question at my consultation meeting to why I wasn’t TUPE’d over or given that opportunity now knowing that their intentions in March/April time were to put me at risk of redundancy, have I a valid case for upping the proposed severance package which equates to 15% of my salary? Or any more good bargaining positions?I need to find their answers to why my role is at risk as I am the only person within the organisation that does the role I do.

Please help if you can.
Thanks

[ULA]

Can I first ask how long you have been employed at the company?

As you say TUPE is complex, however I think one of the first things you need to establish is why you were not TUPE'd over with the rest of your colleagues.

What was the situation that led to TUPE in the first place - was the part of the company you worked in sold or was a contract for services lost by your employer and won by the company the rest of your colleagues transferred to?

Did the transfer happen back in March? It is just interesting you say that your redundancy was delayed because of lockdown. Under TUPE, often the new owners do not want all the staff and consequently they may make it a condition of taking over the business, either formally or informally, that the current employer dismiss employees as redundant before the transfer. I am wondering if this was possibly the case in your situation but COVID "took over".

Was your job a unique compared to your colleagues that were transferred over?

Sorry to ask more questions than provide answers but further information is needed in order to help give some guidance to you.

[Roberto154]

4 years;

Part of the business being outsourced by the employer in a Tender process;

The transfer of my team was announced in February to begin in April 2020;

My redundancy situation I have learnt was delayed from April because of COVID until now - this is what I have been told by my line manager but I have no way of confirming this;

My job definitely unique and I was the manager of my team and they did not perform the duties that I did.

Thank you.

[ULA]

Thank you for the the length of service details, just double checking you have accrued employment rights.

If the part of the business that you were in was completely outsourced to another company to perform that function, then everyone engaged in that work should have been TUPE'd over to the new company. Were you not TUPE'd over because the new employers did not require the role that you performed in the new structure of how they wanted to run the outsourcing contract? I think at this stage you need to get the fundamental question answered by your current employer as to why you were not TUPE'd over.

[Roberto154]

So, in consultation period and things not looking good, how and who do I approach to discuss a Settlement Agreement based on me saying unfair process of redundancy and unfair dismissal.
Do I go to my Line Manager or beyond that?

1) When do I approach with this tactic, before during or after the final consultation meeting?
2) in person or by letter
3) Help please !!! my head is going to explode

[Roberto154]

Any templates would be useful too, please. thank you

[Roberto154]

Thank you for the the length of service details, just double checking you have accrued employment rights.

If the part of the business that you were in was completely outsourced to another company to perform that function, then everyone engaged in that work should have been TUPE'd over to the new company. Were you not TUPE'd over because the new employers did not require the role that you performed in the new structure of how they wanted to run the outsourcing contract? I think at this stage you need to get the fundamental question answered by your current employer as to why you were not TUPE'd over.

No, very few were TUPE'd over, those in my team do the same type roles.
Seems my role wasn't going over because the outsourced company would be providing a person of a similar role to myself plus others from the wider teams would be picking up my daily tasks.I've never been given the new operating model or known any changes in structure.
This was the reason for my role being put at risk 'because the ned isn't there and others can pick up the tasks'

[ULA]

Is this matter related to your other thread "Offered TUPE instead of redundancy". If so I will need to merge the two threads together.

It is far more helpful if things are kept on the same thread otherwise we cannot provide advice based on the complete context of the situation.

[Roberto154]

Any templates would be useful too, please. thank you

Yes it is sorry

[ULA]

During any consultation meetings to date what reasons are you being given for the redundancy. Is it directly related to the TUPE transfer or is it for some other economic, organisational or technical reason?

[Roberto154]

Nothing to do with the TUPE, it was explained that my role was longer required in the re-organisation of the structure of the department to try and cut costs and headcount

[ULA]

If there has been a reorganisation/restructure due to an economic reason then this is potentially a fair reason for redundancy. You have already stated you are in a unique position so potentially you are in a selection pool of one.

What are your reasons for saying that the redundancy process has been unfair? Have they not consulted with you, are there alternative positions that you could have been offered and have not? I am just trying to establish the grounds for approaching the company about a Settlement Agreement.

[Roberto154]

If there has been a reorganisation/restructure due to an economic reason then this is potentially a fair reason for redundancy. You have already stated you are in a unique position so potentially you are in a selection pool of one.

What are your reasons for saying that the redundancy process has been unfair? Have they not consulted with you, are there alternative positions that you could have been offered and have not? I am just trying to establish the grounds for approaching the company about a Settlement Agreement.

Unfair - during consultancy it was mentioned to me that the outsourced company would be picking up duties I do plus 'others' in the wider team would be too. Surely this shows that there is a need for someone to do those tasks/jobs I did?
I also have an unresolved 'informal grievance' that was started 3/4 days before lockdown and left open for them to respond too.
Unfair - not given the opportunity to be TUPE'd over as well.
Unfair - 2 internal roles applied for - turned down without an interview

[ULA]

Thank you for responding back to my questions.

The first point may be considered to be a restructuring exercise where the duties of your job are being split up and those are to be retained will form part of other roles across your employer and the outsourced company.

If you have an unresolved informal grievance then you potentially need to escalate this into a formal grievance on the basis it has not been resolved.

Were you doing a role that spend 100% of your time doing activities and duties that were directly related the the work that was put out to tender and won by this other company? If this is the case then potentially you have an argument to say that you should have been transferred under TUPE.

Were you given reasons for why you were not successful in the internal roles you applied for. Where these vacancies provided to you as possible roles you could apply for to avoid redundancy.

[Roberto154]

Thank you for responding back to my questions.

The first point may be considered to be a restructuring exercise where the duties of your job are being split up and those are to be retained will form part of other roles across your employer and the outsourced company.

If you have an unresolved informal grievance then you potentially need to escalate this into a formal grievance on the basis it has not been resolved.

Were you doing a role that spend 100% of your time doing activities and duties that were directly related the the work that was put out to tender and won by this other company? If this is the case then potentially you have an argument to say that you should have been transferred under TUPE.

Were you given reasons for why you were not successful in the internal roles you applied for. Where these vacancies provided to you as possible roles you could apply for to avoid redundancy.

Formal grievance whilst in the 30 day consultation period? I’m at day 18 now.
My role although slightly different from the one advertised could easily been adapted to by me given what my qualifications and current role did. I firmly believe if this role was advertised now I would apply.

The two roles I applied for were on the internal job board and my line manager encouraged me to apply for them when they went live.
Reasons why - relevant experience in the roles (no interview or chat, just HR informing me of this feedback)