TUPE Redundancy Limbo - neither company wants to pay

[purrzilla]

I was employed (FT salaried) by company A for four years and TUPE transferred over to company B in Jan 2020. This was an 'outsourcing' of one part of the business, in which my role and duties were unchanged. In April, company A temporarily closed my workplace and all employees were furloughed.

In July company A took the decision to permanently close that particular branch and made all staff redundant. They also ended their contract with Company B, who informed me that I would be transferred back to company A in accordance with TUPE regulations.

Hearing nothing from company A, I enquired about my status re: redundancy pay, notice, unpaid holiday and salary due since my re-transfer. They responded claiming that since they had never agreed to my transfer they considered me an employee of company B, and would take no further responsibility. Since then, company B have been (seemingly) trying to resolve this issue, while company A are trying to avoid it. Neither is willing to accept responsibility.

The usual recourse for a redundancy dispute would be conciliation and then a possible tribunal, but I don't know which company is responsible (and still technically my employer, since I never received notice).

Is there any specific language in the TUPE regulations that would clarify this? Or would it come down to the particulars of the specific contract signed between companies A and B?

[ULA]

TUPE is quite complex so I need to ask some further questions:

1. When you were put on furlough was formally done by Company B notifying you that you were on furlough. I presume your salary was reduced to 80% under the furlough scheme in which case your employer at the time Company B should have written to you to get your agreement to this change to your terms and conditions of employment.
2. At the location you were working was there both Company A and Company B employees working there?
3. When the location was shut down were the activities being carried out at that location being moved to be carried out from a new location?
4. Where you informed in writing that by company B that you role would be transferring back to Company A?
5. Which company sent you your last payslip and when was that?
6. Do you know whether Company A has in fact taken the activities back in-house but working from another location?

If you can provide as many answers as possible that would help in me possibly being able to help you.

[purrzilla]

Thank you very much for the reply.

1. Yes, it was a typical 80% salary furlough, agreed and signed for.

2. Yes, although I was the only employee TUPE'd at that location so I was the sole Company B representative.

3. Yes. Company A runs a small network of branches with national coverage. So, imagine closing a Liverpool branch and servicing all the existing business in that area out of the Leeds branch.

4. Yes.

5. Company B, up to the the transfer date specified in their letter to me (mid-July).

6. I was told (informally) that this was the case.

[ULA]

Thank you very much for the information it has been helpful. In my opinion if Co B confirmed in writing that you would be transferring back to Co A on the date of transfer then you are now an employee of Co A.

My understanding of TUPE is that it would not have been down to Co A to agree your transfer back to them, by virtue of the fact that Co A decided to "in-source" a function they had out-sourced, those employees carry out the work of that operation i.e. you should automatically transfer with the "in-sourcing". If Co A as part of that process decide to close the branch then it is redundancy for which they should make the appropriate redundancy payments.

As i have said though TUPE can be complex. It may well be worth phoning and speaking to ACAS if you have not already done so. I know they cannot provide direct advice however they may be able to identify for you which company you should pursue for your redundancy payment.