Objecting to TUPE Transfer- Anything I need to know or am I all set?

[Aurelius99]

The Company I work for is looking highly likely go into a pre-pack administration to be bought out immediately by the existing directors. I have confirmed that contracts will be being transferred under TUPE regulations.

I had planned to leave in January anyway but I have a long notice period and an even longer non-compete. As far As I can tell, Section 7 of the TUPE regulations give me a right to object to the transfer and leave without notice period and just walk away. This is massively more convenient for me as I have a job waiting for me which I am keen to start as soon as possible.

Details of TUPE here (Section 7 the important part)
https://www.legislation.gov.uk/uksi/...ulation/4/made

I have drafted the following letter in preparation for when the pre-pack occurs (I am naturally not privy to precisely when this will be):

Dear Line Manager and CEO,

Transfer of Employment Contract to NewCo

I am writing to inform you that I object to my employment contract at OldCo being transferred to NewCo under the Transfer of Undertakings (Protection of Employment) Regulations 2006.

I understand that, as a result of my objecting to the transfer:

My employment will terminate on the date of the transfer as if I had resigned.
I will not be entitled to any termination payment, including a redundancy payment (whether contractual or statutory), severance payment or payment in lieu of notice.

Yours sincerely,
Aurelius99

Brief details:
Current employer has been run very poorly for quite some time and despite the pre-pack the strategy remains doomed to fail even with new owners post sale (They are not changing the CEO who is root cause of all the issues).
I am bringing my plans to leave forward as a result of the Pre-pack administration- the deal includes a badly thought out re-branding & restructuring which is equally terrible in both concept and proposed execution for which I do not want to spend the months of my notice period dealing with the fall out when I'm leaving anyway.

I'm done and ready- but is it as easy as sending that letter?

What is the best timing to send it?

Does leaving under TUPE negate my notice period?

Are my current employers legally required to advise me of the date of transfer?

Does unused leave come in to play at all here? I presume not.

Thanks in advance

[R0b]

Hello

I have my thoughts but I am not a TUPE expert. I'm tagging the resident expert ULA to comment but I've answered a few things and Ula can correct me if anything.

I'm done and ready- but is it as easy as sending that letter?

As I understand it, there is no prescribed way of informing your employer but usually a letter for evidential purposes would be appropriate in the event of a dispute.

What is the best timing to send it?

If you are certain that this is the route you wish to take, then I think you should send it as soon as possible because there may be complications if the pre-pack happens without your knowledge, then you might be deemed to have transferred over before the objection was given. Don't think it's fatal for you to object after the fact as I think there is some case law to support employees objecting after the TUPE transfer takes effect but definitely not something you should sit on as those cases may be fact specific. It may also mean those covenants are assigned to NewCo which can be enforced, depending on whether you were informed in advance of certain details of the transfer.

Does leaving under TUPE negate my notice period?

It is my understand that once the transfer date takes effect, you have effectively resigned from your current role, assuming it is shorter than your notice period.

Are my current employers legally required to advise me of the date of transfer?

Employers are required to inform and provide you with some information around the transfer, including the proposed date. However, that doesn't always happen particularly in pre-pack cases. You could be an employee under OldCo on the Friday and transferred over to NewCo the following day. Do you have a representative acting on behalf of employees liaising with the directors?

Does unused leave come in to play at all here? I presume not.

I will leave this one for Ula as I am not sure, but interesting question. Ordinarily NewCo would have to accept any accrued holiday based on a transfer but I think in this case, since you are not going to transfer over, then logic would dictate that any accrued holiday that might be payable would rest with OldCo and in that case you might struggle to recover anything, pennies in the pound at best. Unless of course TUPE Regs state otherwise and you are entitled to zilch.

[ULA]

TUPE legislation can be quite complex, although rob has already provided some good guidance:

I'm done and ready- but is it as easy as sending that letter?

If you are going to object to the TUPE transfer then your employer will take it that you have resigned, with effect from the date of the transfer. This is effectively as you have set out in your draft letter.

What is the best timing to send it?

The only comment to add is that if you have a job to go to then decide when best suits you but ensure that is is before the transfer.

Does leaving under TUPE negate my notice period?

If the transfer date is before the end of your notice period then you will not be required to work your full notice.

Are my current employers legally required to advise me of the date of transfer?

Nothing further to add to rob response however they do have a legal obligation to consult in respect of the transfer, which includes detail of the transfer and the intended date of the transfer.

Does unused leave come in to play at all here? I presume not.

You would be entitled to accrued but untaken holiday pay up to the transfer date, your effective leaving date. However this is an OldCo payment to make and if they are doing a pre-pack then it may be dependent on the financial situation.


On another point you say your post that you have a non compete clause, would your move to the job you have lined up be in contravention of this clause?

[EXC]

TUPE legislation can be quite complex, although rob has already provided some good guidance:

It's R0b with a zero.

[ULA]

Sorry R0b