TUPE regulations broken?

[Kitiara]

One for Eloise I think …
My Partner had been working as a Building Manager for company A (a property management company) for 4 years, when on 17^thDecember he was informed that he was being TUPE’d over to company B (also a property management company) on 1^st January. He never met anyone from company B, no introductions etc. On 4^th January a “stranger”was spotted walking round the building, my Partner approached him (security waspart of his job) and asked if he could help him, he replied “yes I am your new boss” my Partner said “oh hello, nice to finally meet someone from company B”he replied “no I am from company C (a security company), we have been subcontracted by company B and you work for us, not company B, we will be paying your wages etc”
There were 4 employees who worked 3 x 12 hour shifts (8am –8pm), 2 of the employee’s worked the day shifts and 2 the night shifts, they then 3 days off. One of the original employee’s of company A decided he did not want to be TUPE’d and he left, and company C brought in one of their own men, who had only ever worked in security , never in Facilities Management (which was basically what the job was) After several months of continual problems including stopping all hot meals being eaten while on shift and not being allowed to leave the front desk to eat in the designated break area, the frontdesk had to be manned 24/7 with only one employee being on site at any one time, so no opportunity to have a hot meal during the 12 hour shift. There were some nights my Partner wouldn’t get home until gone midnight because they had to get someone to cover when their guy just didn’t turn up for his night shift.There were various contract changes with the threat “if you don’t sign you will be dismissed” one of which was NO security patrols round the building – strange when the company was a security company! My Partner eventually left the company after basically being told as he was the manager, they wanted to “demote” him to the same level as the other 3 employees and reduce his wages to match theirs, but to still carry out the extra duties he did as manager.
My Question is … can you sign to be TUPE’d over to one company but then be effectively TUPE’d over to another without notification?This all happened a couple of years ago now, but it’s always irked us how this was carried out and was it lawful etc, the fact that company C was a security company and had no idea how to manage the day to day running of a building was evident. This only for our own information as I doubt there is anything we can do about it now anyway.
Thanks,
Kit

[Eloise01]

Re: TUPE regulations broken?

Thank God you don't expect to do anything about it! You were already on "you are out of time to complain" when I thought this was last December! There ought to be consultation during any TUPE from both employers, but the truth is that this can sometimes be sketchy and there is little you can do about it if they don't. TUPE is a great idea in theory, but if practice it is a toothless wonder that can be more trouble than help to employees. Given that it protects almost nothing, it either needs substantial overhauil, or a return to the "old ways" where people were made redundant and got new jobs. At least the old way, people knew exactly where they stood. With TUPE pretty much the only thing that is really protected is continuous service, and all the rest is up to the vagaries of the employer. So good employers will do everything they can to protect terms and conditions because that is what they promised; whilst others don't give a damn and the changes are rung in the day after under "business justifications" etc. I suspect the reason why the law is so toothless is that it was imposed on the UK by Europe, and I am not convinced that it has ever been supported by government

[FORCEOFONE]

Re: TUPE regulations broken?

I must disagree on your personal opinion on TUPE

That is why with any TUPE transfer you have a consultation process.

Personal terms and conditions cannot be downgraded by moving to a company with lower terms and conditions

All rights and contractual obligations the employee has is protected when transferred to a new company. The new employer takes over where the last one left off. The new employer has to confirm the protection of those rights with the old employer before the transfer can take place.

When an employee has been transferred, the host company will wish to cut costs and staffing costs are the obvious means. But any dismissal will be automatically unfair if linked to the transfer. Economic, Technical, organizational reasons are the usual excuse.

To qualify as an ETO defence, an economic, technical or organizational reason must be one "entailing changes in the workforce." The courts have held that this means a change in the numbers of people employed or a change in employees’ particular functions.

Redundancy will be shown as fair under ETO if All the employees, including those transferred under TUPE are included in any selection process

Harmonization of contracts can take up to 18 months during the TUPE process


The problem with any transfer stems from lack of information. People will normally rely on a trade union to over see any transfer, but it is now normally done through unqualified work council representatives through lack of trade union recognition.

As stated before, this is just my opinion

[Kitiara]

Re: TUPE regulations broken?

Thank you both for your input, as I said, I knew it was out of time but it was just a niggle that "something wasn't quite right" about the way it was done and knew someone on here would be able to set the record straight. Company "C" has since lost the contact anyway, the tennants didn't like all the new changes and terminated the contract so my fella would probably have been out of a job within a year anyway.

[Eloise01]

Re: TUPE regulations broken?

I must disagree on your personal opinion on TUPE

That is why with any TUPE transfer you have a consultation process.

Personal terms and conditions cannot be downgraded by moving to a company with lower terms and conditions

All rights and contractual obligations the employee has is protected when transferred to a new company. The new employer takes over where the last one left off. The new employer has to confirm the protection of those rights with the old employer before the transfer can take place.

When an employee has been transferred, the host company will wish to cut costs and staffing costs are the obvious means. But any dismissal will be automatically unfair if linked to the transfer. Economic, Technical, organizational reasons are the usual excuse.

To qualify as an ETO defence, an economic, technical or organizational reason must be one "entailing changes in the workforce." The courts have held that this means a change in the numbers of people employed or a change in employees’ particular functions.

Redundancy will be shown as fair under ETO if All the employees, including those transferred under TUPE are included in any selection process

Harmonization of contracts can take up to 18 months during the TUPE process


The problem with any transfer stems from lack of information. People will normally rely on a trade union to over see any transfer, but it is now normally done through unqualified work council representatives through lack of trade union recognition.

As stated before, this is just my opinion

ETO reasons are much wider than your narrow interpretation of what the courts have said - it would be more accurate to say that this is what some courts have said about some things. The protection exists at the point of transfer and thereafter only in so far as the employer cannot substantiate an ETO reason for change. The speed at which these changes can occur may be very rapid indeed. Harmonisation of contracts may, for example, take a dceade or more - or a few months. It depends on the employers ability to construct a sound business justification, the employers will to make changes, and the degree to which the workforce are able and willing to resist changes.

[FlamingParrot]

Re: TUPE regulations broken?

Personal terms and conditions cannot be downgraded by moving to a company with lower terms and conditions

It looks like sick pay is not one such term or condition, as it went down to just 5 uncertified sick days per year on full pay, from a much more generous allowance by the original employer. :rolleyes2:

When an employee has been transferred, the host company will wish to cut costs and staffing costs are the obvious means. But any dismissal will be automatically unfair if linked to the transfer. Economic, Technical, organizational reasons are the usual excuse.

But they won't say your dismissal is linked to the transfer in any way, they'll hunt around for arguments to sack you, the did with me less than 2 weeks after a TUPE transfer. :mmph:

The problem with any transfer stems from lack of information. People will normally rely on a trade union to over see any transfer, but it is now normally done through unqualified work council representatives through lack of trade union recognition.

Not everyone belongs to a trade union, in certain sectors, for example, the City, trade union membership is virtually unknown.

As stated before, this is just my opinion

My personal experience in my case.

[FORCEOFONE]

Re: TUPE regulations broken?

We all have opinions, Some have already been involved in the TUPE process, some have not. It all depends on the consultative phase prior to merger that is the key. That is what has been negotiated.

If after the transfer has occurred and you object to any down grading of your contract of employment by your new employer, and you consider it vexatious, you have then three choices

1/ accept the new contract of employment
2/ accept the new contract of employment and work under protest
3/ resign and claim constructive dismissal

Then let an employment tribunal decide

Just my own opinion

[Eloise01]

Re: TUPE regulations broken?

On this matter no, I don't have opinions - I have the law. Some of us have been in more employment tribunals than others have had hot dinners. And your (3) is wrong - it isn't constructive unfair dismissal at all. This is one of the circumstances in which under either (2) or (3) you can claim unfair dismissal.

[FORCEOFONE]

Re: TUPE regulations broken?

If i am incorrect then please post up the regulations as to either the Employment Rights Act, regulations contained within TUPE or established CASE LAW

If i am mistaken then i will hold my hand up and acknowledge it

I do not do subjective comments, only objective based on established facts

Difference of opinion is what makes a healthy debate, not points scoring

[Eloise01]

Re: TUPE regulations broken?

You are mistaken in the claim attached to both (2) and (3). The claim is breach of contract by the employer arising from a TUPE transfer, which is unfair dismissal and not constructive unfair dismissal. Of course, winning such a claim is a different matter. Protection under regulation 7(1) includes any reason connected with the transfer, as as such that applies to any change including harmonisation and other allegedly ETO reasons. Breach of TUPE is an automatically unfair dismissal if proven - hence unfair dismissal and not constructive unfair dismissal, which is never an automatic unfair dismissal. The argument therefore stands or falls on the employers ability to successfully argue an ETO justification.

This is not points scoring - people read these threads and derive real information on which they base their arguments. Fallcious information misleads them into believing - and doing - things which are unwise or foolish. I appreciate, reading your previous posts, that you have a degree in law and an obvious interest in several areas of law. That is not the same as having practiced the law - specifically employment law - for over 30 years. I do not attempt to explain what to do about credit cards or debts because I do not understand those areas of law well, although I may have opinions on them - opinions I make clear are opinions. On this matter it is not an opinion - it is certainty.

[FORCEOFONE]

Re: TUPE regulations broken?

Thank you for your response and i will always state if my statements are only my opinions.

I have studied Selwyns law of employment and i am familiar with the Employment Rights Act

It is true that employment law is not my preferred area of law, Consumer Credit, Data Protection, and the European Convention on Human Rights is my area of expertise

I understand that we try and explain legislation in a way the average person can understand. You and me only understand case law and statutory legislation, it is neither black or white. We do this in the way we speak and communicate, it is nothing personal, its the way our tutors drummed it into us.

I myself value your input as i to have to learn in different areas of the law which are not my chosen field of expertise, just like yourself.

Professional courtesy dictates if i have offended anyone then it was without any form of malice, only ignorance that was well intended

[Eloise01]

Re: TUPE regulations broken?

No offense was taken - I merely wished to ensure that the site reflected accuracy in what people read. For your information, you may find it useful to know that there is only one other area of employment law where a "resignation" / working under protest similarly attracts claims of unfair dismissal, and that is where a contractual change is enforced - TUPE or not. These are exceptions to the normal applications of unfair dismissal (actually they aren't really exceptions, but the rationale behind why they aren't is several tomes long and not really workable for sites like this). For clarity for other readers too, the process of "working under protest" must be subject to, and stated as subject to, the starting of legal proceedings. Simply protesting is not enough - you must simulataneously bring legal action or your "protest" is pointless.

There are areas of case law and statute upon which I am certain about their application; others where I am not certain (otherwise there would be no need for lawyers and/or courts) - I would never claim to understand either. There are some things that are beyond the wit of humankind, and understanding the law is often one of them. But that is what we have higher courts for - arguing about it! If you intend to enter the law you will quickly find that like most things one can study, there is a huge difference between styudying it and reading it, and doing it. The doing is the bit that is fun.

[mariefab]

Re: TUPE regulations broken?

While you're on the subject of TUPE's toothlessness....

Are the sections covering employee representatives and informing and consulting lawfully 'optional' in practice?

Is it OK for both transferor and transferee to state, when an employee nominates themself as an employee rep, that it's not their practice to hold elections etc.
Instead they give some information to the employees able to attend a meeting.

[Eloise01]

Re: TUPE regulations broken?

While you're on the subject of TUPE's toothlessness....

Are the sections covering employee representatives and informing and consulting lawfully 'optional' in practice?

Is it OK for both transferor and transferee to state, when an employee nominates themself as an employee rep, that it's not their practice to hold elections etc.
Instead they give some information to the employees able to attend a meeting.

No it isn't optional, and no it isn't OK. And yes, there are consequences for an employer who breaks the law. But yes, in practice it is often "optional" because the alternative goes something like this: "hi there Potential New Employer, it's going to be absoluetly fab working for you, especially since I really don't have a choice in the situation - by the way I am making a tribunal claim over your faliure to consult". This is obviously one of the situations where unionised workplaces have an advantage - the employer(s) cannot ignore unions, and they do so at their peril. When unions take action against an employer, it isn't viewed as "personal" in the same way as it would be if it were individual employees - it's just considered part of "business". But it is very different for individuals or even elected non-union representatives. No matter that the latter technically have the same protections as union reps in these circumstances, they won't be representatives for very long, and employers can afford to play the long game - make an in-service claim against an employer or do too good a job as a representative, and don't be surprised if your name features high on the redundancies list a year later, or your performance is in question, or your sick leave scruitinised, or your IT use being watched...

There are answers to these problems, they are easy answers, and that is why I suggest that the issue here is not the law per se, but the will to have an effective law. Simply make all TUPE transfers notifiable actions, just like larger scale redundancies are. There is even a nice convenient body to make them reportable to - ACAS. Upon notification the conduct of the transfer gets a "case number", which the employer must notify to affected employees. The employer is made legally responsible for lodging a consultation plan, and an "end outcome" report confirming that they carried out their plan or, if it wasn't, what changed and why. The plan is also made available to employees. If the employees are unhappy with the conduct of the consultation or believe the law is being broken, they ring ACAS with the case number and report it - and ACAS investigate and have delegated prowers to fine the employer if necessary. It isn't perfect - nothing is. But it would concentrate minds.

[mariefab]

Re: TUPE regulations broken?

Thank you for your comprehensive response.
I think your suggested alternative is an excellent idea.