TUPE - Now previous company have started a disciplinary investigation

[GeoffC]

Hi LegalBeagles,

Any advice would be massively appreciated, sorry it's long...

Employee with over 10 years service with clean disciplinary record in England.

Company A and Company B are in the same group of companies.

Employee was officially TUPE'd on 1st April from Company A to Company B, we don't believe TUPE was followed correctly but that's another discussion, just showing how poor the HR departments have been here.
No major contract changes other that pay dates. Employee now has a contract with Company B and is been paid by company B (HMRC online shows the finish and start at new company)
No changes to working location, just continue as normal.

Ongoing issues in the department has meant some staff on sick with stress.

Last week the employee was contacted by the old Company A HR department informing an investigation had been opened around misuse of MS Teams chats, no policy provided on use of chats although they did include the disciplinary policy for the old Company A. Incident is in regards to a teams chat from December last year and includes 6 people - all being investigated.

After advice from ACAS, employee replied to old Company A HR stating as they no longer work for Company A have no contractual obligations to Company A, they will not be attending or partaking in any investigation, they are more than happy to discuss with HR from the company they actually work for - Company B.

Company A replied, as they are part of the wider group they will be continuing the investigation under the new Company B disciplinary policy. This confused employee even more as we now have Company A carrying out an investigation using Company B policy for an employee who no longer works for them.

Employee then raised this with their new Company B HR team who quickly replied that they are aware of the investigation and are letting Company A lead the investigation, shutting the conversation down.


We have a feeling there are some underhand tactics going on here, maybe trying to remove the whole department and using anything they can find to do this, digging up chats from 6 months ago.
I know employee has good protection from TUPE legislation.

I'm no legal expert but this seems completely wrong to me, thinking through the scenarios:
· Company A continue with investigation, try to terminate employee from Company B - Employment Tribunal time.
· Company A issue written warning to employee this somehow ends up on Company B record - Can employee reject this written warning? They had 28 days to pass employee data over?
· Company B carry out the investigation for something employee did at old Company - how would they have access to this data legally?


I've had a bit of legal advice who tend to agree with me but can't find any case law to support this as I'm guessing this just doesn't happy as it makes no legal sense.

I'm guessing we also have a potential GDPR issue, digging through ex employees data?

Thanks for any advice,

Geoff

[ULA]

TUPE can be very complex, I know that having dealt with this a few times. However the situation you set out is certainly not something I have come across, so I am trying to apply logical legal argument here.

My logic is based on normal TUPE situations, not governed by both companies being in the same group, and given the fact that you were TUPE'd this would suggest that there is a definite siloing of each company. In which case you are no longer an employee of Co A and your employment contract relationship is with Co B. So my comments are:

1. If you had been TUPE'd from Co ABC to Co XYZ (not in the same group) and 5/6 months later Co ABC estalished a possible disciplinary situation, they could not do anything about it, you are no longer an employee of Co ABC. In this case each Co is siloed, even if they under the same group, this is supported by the fact you were TUPE'd and therefore in my view, the same principle stands.
2. As part of TUPE employee data is transferred but this only relates to current information relevant to the date of transfer. I presume there was no indication at the time of transfer any investigation around misuse of MS Teams was being undertaken by Co A into you or your colleagues?
3. My understanding is that only data on record at the time of transfer would be accessible to Co B from Co A.
4. A further point they are bringing up something that happened 5/6 months ago and now has no impact on Co A as you no longer work for them and it is not something Co B can "take up" as you were not their employee at the time.

This is such an unusual situation and I am not directly aware of any case law that covers this - so sorry.

Not sure if this has added support to the advice that you have already received but if there are further questions we can help you with please come back to this thread

[GeoffC]

Thanks for the reply, I really appreciate it,

It has certainly helped as we all seem to agree it is so unusual, therefore makes me think they have messed up legally.

RE point 2:
no indication of any investigation at the time of transfer.

Thanks again, we will push on.