TUPE and the disciplinary process - EDITED -

[Melvin]

A company buys a shop and all staff are TUPE over to the new company. Prior to TUPE there was a four step disciplinary process in place being 1) informal meeting, and if no improvement was made after that it was escalated to, 2) investigation meeting, 3) disciplinary meeting, and 4) appeal meeting. This process was kept in place for several months after TUPE until everyone was given their new contracts with the new company; at that point the informal meeting part was removed and the disciplinary process was now a three step process starting with an investigation. The reason the disciplinary process was changed is because all the other shops this company own only had a three step process.

A few months after signing the new contract an employee is called into an informal meeting to discuss an issue. After the meeting the employee was led to believe that was the end of the matter. The following day the employee was called into an investigation meeting to discuss the exact same thing and asked the exact same questions; this was then escalated to a disciplinary hearing.

It seems the person doing the investigation mistakenly used the pre-TUPE disciplinary process and initially held an informal meeting instead of going straight to an investigation.

A couple of questions,

1, as the employer had already started the pre-TUPE disciplinary process, should they have allowed time for improvement before moving to an investigation?

2, was changing the disciplinary process after TUPE, to bring it in line with employer's other shops, allowed under TUPE rules?

Thankyou in advance

[Melvin]

I will just assume employer was in the wrong on both counts and take it from there. Thanks

[ULA]

In regard to your two questions:

1. Was it a genuine mistake by the person carrying out the process. Were they an employee of the company that was TUPE'd over and had "forgotten that the disciplainary process had changed?
2. Was the disciplinary process in the company pre TUPE a contractual term in your contract of employment?

[Melvin]

1. Was it a genuine mistake by the person carrying out the process.

No idea. He was new to the company but he was also employed as a Deputy Manager so should have known the procedure before starting it.

Were they an employee of the company that was TUPE'd over and had "forgotten that the disciplainary process had changed?

They were never employed by the previous company, and they were never employed by this company prior to this. They were brought in two months after TUPE, may have been made aware of current process but ought to have know a new process was going to be put in place as they were Deputy Manager.

2. Was the disciplinary process in the company pre TUPE a contractual term in your contract of employment?

No

[ULA]

Did the employee have the opportunity at the disciplinary meeting or ask for confirmation as to which process was being applied to their situation given that it seemed to be a combination of both pre TUPE and post TUPE process?

Not everything automatically transfers across on TUPE and includes many non-contractual policies within, for example, a staff handbook of the outgoing employer such as the disciplinary process.

[Melvin]

Did the employee have the opportunity at the disciplinary meeting or ask for confirmation as to which process was being applied to their situation given that it seemed to be a combination of both pre TUPE and post TUPE process?

The employee did not ask and it was never put to him. At the end of the meeting employee was given chance to add anything he wanted but he couldn't think of anything, he was concentrating on defending against an allegation rather than the mechanics of the disciplinary process.

Not everything automatically transfers across on TUPE and includes many non-contractual policies within, for example, a staff handbook of the outgoing employer such as the disciplinary process.

In this case we do know the procedures that were in place prior to TUPE were kept in place for a few months after TUPE until the new contracts and new employee handbook were issued, which were signed, dated and came into force on day of issue. The reason pre-TUPE procedures were kept in place is because the new owners were rebranding the shop in line with a franchise they belonged to and there was a lot of redecorating and some structural work which had to be done before the franchise company would sign off on it. For the few months between TUPE and franchise the shop was unbranded and worked to the pre-TUPE rules and procedures. The new contracts and new employee handbooks were franchise ones after the rebrand had been signed off.