Failed TUPE Advice

[Kit1989]

I work for a non-UK company which has employed me through a UK based employer of record since August 2022. In mid-August my non-UK employer decided they wanted to change to a new provider of employer of record services.

We requested that my employment was transferred from the old to new employer of record under the TUPE process to protect my continuous service. The new employer of record said this was fine, and inserted a clause in my new employment contract stating it was a TUPE transfer. I signed and my start date was October 1st.

At the start of October I became concerned because the employment did not transfer. The old employer of record told me I had to resign to end my non-UK employers relationship with them. At this point I read more about the TUPE process and saw that none of the steps had been followed during the transfer.

After a month of trying to get more information, this week I had a meeting with a useful member of staff at the new employer of record who told me that we should never have been told it could be a TUPE transfer (the member of staff who said this did not contact the old employer of record to confirm this was possible). Despite the contract I signed saying it was a TUPE transfer, and my non-US employer and I being told it was a TUPE transfer I am actually a new starter with a completely new contract. They put this down to an internal miscommunication.

I have two questions.

First, is it possible to take the new employer of record to employment tribunal for this? I was planning to do this for failure to consult under the TUPE legislation but I’m not sure this is possible now they claim from their point of view it was not a TUPE transfer at all.

Secondly: the new employer of record says I have two options now. Either we can go back and try to do the TUPE process again, but they are not clear if this is possible (they say the old employer is not likely to engage). Alternatively my continuous employment status can be protected by inserting a clause in the new contract with the original start date. Is this really possible? The acas advice page seems to suggest the only way continuous employment can be protected when transferring employers is through TUPE.

[ULA]

Being employed via a EoR is not without is complications and that includes whether TUPE applies if you are transferred from one EoR to another EoR.

An EoR ,is in reality, a way to offer businesses the ability to employ individuals anywhere in the world, often through one contract and payroll system, without requiring an entity to be established in that jurisdiction. The EOR becomes the entity that employs one or more individuals in the relevant jurisdiction and effectively ‘"seconds" employee/s to the business.

I would suggest that if you are being given the option by the new EoR to insert a clause in the new contract with the original start date this is the simplest way to rectify this. However make sure:

1. The new contract with the correct continuous service date states that is replaces all previous contracts of employment.
2. It is dated and signed by both you and the EoR
3. You keep a copy of the signed version.