Changes to job description and contract after TUPE question.

[UKTECH]

Is it correct under TUPE protection, no changes can be made to a employees job description, contract or terms and conditions unless the employee agrees after a TUPE has already taken place. In effect all of the above are frozen unless I agree to any changes?

if they want to make any changes because of a ETO reason they would have to consult with myself and my union?

Im public sector btw with 15 years continuous service.

Thanks in advanced.

[ULA]

Please can you provide further details regarding your TUPE as this relates to the public sector. TUPE applies to public sector transfers only if the transfer is from either:

1) the public sector into the private sector
2) one public authority to another – for example, from the NHS to a local authority

TUPE will not apply if your transfer is within the public sector where your employer does not change. For example, a transfer within the Civil Service. However, employees will get protections under the Cabinet Office Statement of Practice (COSOP).

[UKTECH]

Hello,

Thankyou for your reply,

The TUPE was from a council maintained primary school to joining a MAT over 2 years ago. Our contracts changed to been employed by the local council to been employed by the trust.

[UKTECH]

ULA ive noticed you've listed a email address could I email you and give you the full background? My role is up for redundancy consultation.

[ULA]

Apologises our services have recently changed and previous posts did not have the updated information in my signature. I have now updated this.

If your employer changed, then it would appear that TUPE would have applied 2 years ago and I assume that when you moved across to the MAT you were on the same terms and conditions.

I just want to caveat my advice by saying that TUPE is a complex area of law.

Simply stated under TUPE regulations, your terms and conditions are protected indefinitely after a transfer. However, your employer can propose changes so long as they can demonstrate a valid EOT reason that involves a change in the workforce such as redundancies, restructuring, or relocation. Any proposed changes cannot be because of the transfer even if it was 2 years ago. If your employer is stating it is for EOT reasons and proposing changes now, they will need to show that it is genuinely about business needs and not just harmonising terms post-transfer.

They will need to consult with the union if they are recognised by MAT for changes to terms and conditions.

If redundancies are being proposed depending on the number consultation either with the union and / or with affected individuals will need to take place.

[UKTECH]

My situation is im the only employee across the trust who carries out anything to do with my role.

The trust has always had a MSP who did my role across the whole trust and central office since its inception since 2019.

The school are now claiming they are making my role redundant because they dont need someone employed fulltime to carry my role and they want to use the MSP who carry out my role across the trust instead.

Im aware to be made redudant after been tuped there has to be both a genuine reason for redundancy and a valid eto reason.

As it stands the school are using the reason that because a preexisting MSP can perform my role they dont need me full time anymore.

Which undermines TUPE as my redudancy is a direct result of the school joining the trust and the trust having a preexisting MSP out my duties since 2019.

Even if the school can clear this hurdle I should be tuped over to the MSP under change of service provision.

Case in point is they still need my role to be carried out therefore they are making me redundant not the role.

Firstly they cant use the transfer as a reason for redundancy. Even if they could they need a genuine reason for redundancy as well as a ETO reason. Secondly even if this could be proven I should be transferred to the MSP under change of service provision. Ive spoken to the MSP as have a good working relationship with them and have worked in partnership with them. They agreed from the beginning the plan was to always work alongside each other not instead of. I have emails to this effect both from the trust and the MSP.

Please can you give your take on the situation? ULA

[ULA]

I presume by MSP you mean a managed service provider. Please can you clarify any acronyms you are going to use in your posts, this would be very helpful.

Is the MSP a separate entity to the MAT you work for?

Does the MSP already have staff who carry out your role?

For TUPE to apply to a service provision change there must be an organised grouping of employees whose principal purpose is carrying out the service for the client, in this case the MAT. Even you ,as the single employee, carrying out that service can be an "organised grouping". Also the following must apply:

1. The activities carried out before and after the change must be fundamentally the same.
2. The client must remain the same before and after the change.
3. The service must not be for a single event or short-term task.
4. The service must not be wholly or mainly the supply of goods.

Potentially therefore if your duties are continuing but being reassigned to another provider i.e. this MSP, you may argue that this is a service provision change under TUPE and you should transfer to that provider instead of being made redundant.


Just to let you know I am logging off from the forum and will only be intermittently online between now and Wed afternoon, so I may not be able to respond in a lot of detail until then.

[UKTECH]

Thankyou for your reply ULA

Yes the managed service provider is a separate entity to the school, they have service level agreement with trust not individual schools since 2019

The managed service provider will carry out my role remotely and on site. This is how they support other schools in trust.

I still maintain its not a genuine redundancy situation as the school cant use joining the trust and wanting to user the current managed service provider as a reason for redundancy. They are making me redudant not the role as the my have already said they plan to use the managed service provider to do my role.

Wouldnt this controvene the you cant use the transfer as a excuse for redundancies ruling?

Transferring my role to a preexisting trustwide main service provider would infer this?

If this was to be the case i should have been tuped across to the main service provider at the time the school joined the trust, not two years later.

I feel this is a sham redudancy and they have chosen means of redudancy to phase me out

There is no comparable jobs out there for me, any comparable jobs would require me to take a 33% pay cut and be back on minimum wage.

[UKTECH]

I've now started applying for jobs but don't know the rulings about getting redundancy pay and then starting a new job in a similar role, can anyone advise?

[ULA]

As per my post #7 potentially you should be TUPED to the managed service provider if your role is now going to be undertaken by them.

Are you applying for roles with a different employer?

[UKTECH]

Yes a different employer but as far i know if i find another job without waiting for redundancy its classed as a resignation and no redundancy money will be given. What about the reason for redundancy is the trust has a preexisting sla with a external IT Support company before the school joined

Surely using this as a reason for redundancy isnt valid as they are using the transfer as a reason. If this was the case I should have been TUPEd at the time the school joined the trust not two years after? I found the below on ACAS.

https://www.acas.org.uk/managing-red...-tupe-transfer

After the transfer
After employees transfer, employers can only make redundancies related to the transfer if there is both:

a genuine redundancy situation
an 'economic, technical or organisational' (ETO) reason involving a change in the workforce

[ULA]

You are correct. If you resign in advance of a redundancy consultation then the trust will not be obliged to pay redundancy pay.

I cannot comment on the reason why you were TUPE'd from the council primary school to the MAT rather than the MSP. There may have been good business reasons for doing that at the time. However if there is now a business reason for moving the service provision of your role to being provided by the MSP then potentially this is a further TUPE situation.

I presume you are in the union and I would suggest you seek some legal advice from them as well as from us here on LB.

[UKTECH]

ULA


The MSP know about the situation and dont want me because I earn a lot more than their other staff in the same role and if they made me redundant. They would have to payout my redudancy instead of the trust following a full redundancy process.

The school have already admittied to me and my union they still need my role to be carried out and this will be done by the MSP.

Case in point is they are making me redundant not the role and trying to bypass tupe regulation. Which is automatically unfair dismissal.

[ULA]

From what you have said there does not seem to be a genuine redundancy as they will look to the MSP to source your role as the new service provider, to whom you should potentially be TUPE'd to.

However, I assume you are a union member, please take advice from their legal team as TUPE, as I have already stated can be a complex area.

[UKTECH]

At my most recent meeting they went through my job description mentioning responsibilities which require less time from me or dont need doing any more.

But I have never seen this job description before its not my original job description, its also the wrong job title and wrong paygrade and contains duties which have never existed including line managing colleagues and reporting to a deputy manager.

How can it be a fair process when they are comparing my current duties to this job description?