tupe transfer

[wales01man]

Re: tupe transfer

As an ex pub owner I know that some nights the bar take is less that running costs and a wage so you are doing the right thing if you carry on paying out without getting it in you will soon join the ranks of the likes of me EX pub owners ,its a tough market out there good luck for the future with or without this guy and his OH,
Cant help with wording of letter if I was writing it to him there wouldn't be may words most I could not put on here,someone should be able to help

[jaxkevla]

Re: tupe transfer

thanks wales01man, I feel like im going mad with worry over what will happen after this, but, now feel we have no other option unless we pack up ourselves and cant afford to do that either feel like its a vicious circle and no matter what we are going to be the losers in this.....

[teaboy2]

Re: tupe transfer

We have decided after more deliberation that we can no longer afford to pay him his 19.5 hrs . On the nights he works we actually have to subsidize his wages from our own account as we don't take enough money, (at the moment on the nights in question he earns more than we do!) I have decided to basically take the bull by the horns and inform him by letter on Friday night that as of Sunday he will be losing 9 hrs per week and if he doesn't want to do this he will have to take us to tribunal. I know it seems like we are riding roughshod over him but we cannot afford to continue any longer with this issue as we will end up losing more than just a few hours. Please if you have any advice as to how to word this letter either pm me or post on here for me, I know this isn't going to end well but its time to " publish and be damned"

Why won't it end well - You have the clause in his contract that permits you to reduce his hours or put him on short term. So he wouldn't have any comeback at all, and he won;'t be able to claim breach of contract, unfair dismissal (as your not dismissing him) nor will he be able to claim constructive dismissal which 9 out of 10 constructive dismissal claimants loose at tribunal anyway because its that dam hard to prove. And the fact your doing this for economic reasons in order to keep the pub in business and make a profit, goes in your favour and is seen as perfectly reasonable. So its a matter off either give him the hours he wants and the business becomes insolvent, make him redundant and cut all ties with him and he ends up on the dole cue, or reduce his hours and to what you can afford to pay him as a business - A tribunal would take that in to account and decide that you gave him the best option out of the 3 as at least he would still have had a job.

If you can afford to pay his redundancy package, and keep him on for the duration of the consultation period prior to date of redundancy (Termination of employment) then you will not have any risk of any come back and they would have no grounds to harass you about it. Though they don't in my opinion have any grounds to complain in any case if the clause is correct.

In regards to the letter, i would like to help you, but its difficult to do so with having a copy of the contact minus personal details, so i can draft the letter according to whats in his contract. If your able to scan it a copy of the contract minus business details and the employees details then and post it up here then that would be useful and allow us to draft a letter accordingly. As you know, its important we get the letter right.

[jaxkevla]

Re: tupe transfer

1. Names of the contracted parties.
Between;
and;
of

2. Starting date of the employee
Employment start date;

Your period of continuous employment began on 3.2.08. You are employed on a probationary basis for 3 months during which time your performance will be assessed. Your employment may be terminated by either party at any time during this period by giving the notice detailed in the Notice Section. Unless otherwise notified your contract will be defined as continuous at the end of the 3 month period probation- this contract thus will constitute your new contract.
3. Job Title and description
The Employee's job title is ; Bar Person
The Company reserves the right to require you to perform other duties and work from time to time, and it is a condition of your employment that you are prepared to do this.
4.Address of the workplace.
The Employee will work at ;
5. Wages
The Employee's wage per hour is; minimum wage. Payments are weekly by cash, one week in arrears.
The Company has the right to deduct from your pay any sum which you owe to the Company including,without limitation, any over payment or any expenses or any cash discrepancies occurring whilst you are working at the premises.
6. Hours of work
The Employee's working week will consist of 191/2 hours.
From time to time, the Employee may be asked to work outside of the contracted hours.
Every attempt will be made to ensure your continuing employment in the event that the Company is faced with a shortage of work or is unable to provide you with work for any reason. This could include temporarily placing you on short time working or indeed lay off; in these circumstancesyou will be paid for those hours worked or in accordance with statutory guarantee pay provisions.
7. Holiday Entitlement
The Employee is entitled to 1041/2 hours paid holiday per annum. The holiday year begins April 01 and ends March 31.
Given the nature of the business it will normally be necessary for you to work on public/bank holidays. Unless agreed differently with your manager you will receive normal rate of pay for this. If you are not required to work on a bank holiday this is just a normal day off and has no bearing on holidays/pay.

[teaboy2]

Re: tupe transfer

1. Names of the contracted parties.
Between;
and;
of

2. Starting date of the employee
Employment start date;

Your period of continuous employment began on 3.2.08. You are employed on a probationary basis for 3 months during which time your performance will be assessed. Your employment may be terminated by either party at any time during this period by giving the notice detailed in the Notice Section. Unless otherwise notified your contract will be defined as continuous at the end of the 3 month period probation- this contract thus will constitute your new contract.
3. Job Title and description
The Employee's job title is ; Bar Person
The Company reserves the right to require you to perform other duties and work from time to time, and it is a condition of your employment that you are prepared to do this.
4.Address of the workplace.
The Employee will work at ;
5. Wages
The Employee's wage per hour is; minimum wage. Payments are weekly by cash, one week in arrears.
The Company has the right to deduct from your pay any sum which you owe to the Company including,without limitation, any over payment or any expenses or any cash discrepancies occurring whilst you are working at the premises.
6. Hours of work
The Employee's working week will consist of 191/2 hours.
From time to time, the Employee may be asked to work outside of the contracted hours.
Every attempt will be made to ensure your continuing employment in the event that the Company is faced with a shortage of work or is unable to provide you with work for any reason. This could include temporarily placing you on short time working or indeed lay off; in these circumstancesyou will be paid for those hours worked or in accordance with statutory guarantee pay provisions.
7. Holiday Entitlement
The Employee is entitled to 1041/2 hours paid holiday per annum. The holiday year begins April 01 and ends March 31.
Given the nature of the business it will normally be necessary for you to work on public/bank holidays. Unless agreed differently with your manager you will receive normal rate of pay for this. If you are not required to work on a bank holiday this is just a normal day off and has no bearing on holidays/pay.

The bit highlighted in read regarding short time working actually means the clause permits you to reduce his hours see under "Overview" here - https://www.gov.uk/lay-offs-short-timeworking/overview

So in effect they are buggered and his O/h can rant and rave all she wants. By the way its an offence (as far as am aware) for someone to wrongly state that they are a solicitor - So if she had stated precisely that then she committed a criminal offence.

[jaxkevla]

Re: tupe transfer

You will accrue holidays on the basis of 1/52nd of the annual entitlement for each complete work of service in the holiday year. If a bank/public holiday falls on a day when you would not normally work, you are not entitled to any additional payment or time off in lieu.
Payment for holidays will be calculated on the basis of your average rate per hour for your average normal hours over the 12 weeks immediately prior to your holiday.
Annual holiday entitlement will cease to accrue in cases where you are absent from work for a continuous period in excess of 4 months, apart from any entitlement required to meet the minimum statutory holiday obligations. Accrual will re commence after the completion of one calendar month of working.
Generally you will only be allowed to take a maximum of 2 weeks holiday at any one time. All holidays must have prior approval and authorization from your manager, subject to the following minimum notice periods;
Up to 4 days holiday requires 1 months notice,
1 week or more of vacation requires 2 months notice.
Where too many employees require the same holiday period, which if granted would impair the efficiency of the business, holidays will be granted on the basis of first request, first granted.
Given the nature of the business no holidays may be taken during the period 01 December to 02 January. Unused holidays will not be carried forward to the following year.
Employees accrue holiday entitlement during the 26 week Ordinary Maternity Leave period.
Where employees qualify for additional maternity leave, holiday entitlement does not accrue during this period but will recommence immediately upon return to work. However the Company will ensure that the statutory minimum holiday entitlement obligations have been met.
Upon termination of your employment payment will normally be made for all unused accrued holiday entitlement. If you have taken more annual holiday entitlement than you have accrued the balance will be deducted from any outstanding pay.
Where termination of your employment is due to gross misconduct or where the full contractual notice period is not served and worked, unused holiday pay will not be paid, apart from any payment required to meet the statutory minimum holiday obligations. the signing of this document empowers the employer to withhold and/or deduct wages due to termination following an act of gross misconduct.
8. Sickness entitlement
Contractual sick pay; the Employee will receive their normal wage for a period of 4 weeks in any 12 month period where a doctor's certificate is produced after 7 consecutive days sickness. Payment will be less Statutory Sick Pay and any S

[des8]

Re: tupe transfer

By the way its an offence (as far as am aware) for someone to wrongly state that they are a solicitor - So if she had stated precisely that then she committed a criminal offence.

Correct Section21 of the Solicitors Act 1974.
Hence the comments in post 11

[jaxkevla]

Re: tupe transfer

Social Security benefits due to the employee.
9. Pension
A stake holder pension scheme is provided for all employees. Details will be made available on start of employment
10. Grievance Procedure;
In all but one instance, the employee must report any grievance to their immediate supervisor.Where, and only where, the grievance is with the immediate supervisor, the employee can make their grievance known to the immediate supervisor of the employees supervisor.
11. Disciplinary procedure.
Where the employer believes that the employee has acted in an unfit way in the course of carrying out their duty or the employee brings the employers business into disrepute, the employee will face a disciplinary inquiry.
If the employee is found to have committed a minor misconduct, the employer has the option of a verbal warning (in writing), or a written warning depending on the severity of the misconduct.
If the employee is found to have committed gross misconduct, the employer has the option of a verbal warning (in writing), a written warning, a final written warning, or instant dismissal. The employer also has the option to suspend the employee where the employer needs to make an inquiry into the misconduct.
12. Notice periods required from both the employee and the employer.
The minimum notice periods are as follows;
Under 1 month no notice
over 1 month 1 week
2 years service 2 weeks
3-12 years service 1 week for each year to a maximum of 12 years.
The employee must send a copy of their notice to the company's address as 1 above.
The employer will send a copy of the notice the employees address as 1 above.
In the case of the employee being dismissed for gross misconduct, the employer will decide if any notice period will be applied and/or worked.

I agree to the above terms and confirm i have received a copy of this contract.

Not signed!

[teaboy2]

Re: tupe transfer

Right letter Template for you.

Dear MR X

We regretfully have to inform you that due to the financial and economic demands on the business we unfortunately have no option but to place you on Short Time work. This means we have no choice but to reduce your contracted hours to 10 hours per week, until further notice, as per section 6 of your contract of employment as stated below:

"6. Hours of work
The Employee's working week will consist of 191/2 hours.
From time to time, the Employee may be asked to work outside of the contracted hours.
Every attempt will be made to ensure your continuing employment in the event that the Company is faced with a shortage of work or is unable to provide you with work for any reason. This could include temporarily placing you on short time working or indeed lay off; in these circumstances you will be paid for those hours worked or in accordance with statutory guarantee pay provisions."

As a result of this, for the first 5 working days where your hours are effected in any 3 month period to which you are on Short Time working, you are entitled receive pay for the hours in which you would have otherwise been working - This is known as a Guarantee Payment. Therefore for the first 5 days in each 3 month period to which you are on Short Time work will be paid as if you had actually worked your Normal Contracted hours of 19.5 Hours. For more information about Short Time working please visit this government webpage - https://www.gov.uk/lay-offs-short-timeworking/overview

Off course you may not agree to the the cuts in your hours and may apply if you wish for Voluntarily Redundancy after a period of 4 weeks in a row on Short Time working, or you have been on Short Time work on and off for a total of 6 weeks in any 13 week period.

Off course we would rather you chose to stay until things improved where we can again have you working your normal 19.5 hours, as you are a valued member of our staff and we would be disappointed to loose you. So if you agree to work under Short Time where we will give you 10 hours per week instead of your contracted 19.5 hours until the business economic and financial situation improves. Then please sign and date both copies of this letter and bring one copy back to ourselves with in 7 days.

If you do not agree Short Time work as outlined above, then the only two other options we have is to either Lay you off, where you will not be required to work any hours and where you will only be eligible to Guarantee Pay of just 5 days wages, based on your normal contracted hours, for each 3 month period in which you are laid off. Though again you may take Voluntary Redundancy after the first 4 weeks in a row, or after a you have been laid off for a total of 6 weeks in any given period. The second alternative would be for us to make your position redundant which is an situation that we are trying hard to avoid.

Again full information as to your rights and entitlements for Short Time Work and Lay Offs can be found on the following webpage - https://www.gov.uk/lay-offs-short-ti.../guarantee-pay

If you have any questions about this matter, or any suggestions that may help the business avoid having to reduce your hours, than feel free to ask us or put forward your ideas/suggestions in person MR X - As we are more than willing to listen to your ideas/suggestions and answer any questions you have - Note: We will not discuss this matter with MRS X, as she is not a party to your employment contract and we are under no legal obligation(s), or other obligation(s), to discuss or enter further correspondence with MRS X regarding your employment with our company.

In regards to previous communications with MRS X regarding your employment, we would like to point out that we are not making any changes to your actual contract of employment that is Protected under TUPE, we are merely enacting a clause within that same contract as per our legal and contractual right to do so should the business needs require it.

Note that if we do not receive either a signed and dated copy of this letter or a written letter of disagreement from you within 7 days of the date of this letter, then we shall take you silence as being acceptance to working Short Time.

We will inform you of the date in which we require you to start Short Time work in writing at a later date.

Yours Sincerely



I MR (PRINT FULL NAME) hereby agree to work Short Time as per the clause in my employment contract under section 6

SIGNED ______________

DATED _______________



---------------------------------------------------------------------------------------------------------------------------------------------------------------------

You may want to correct my spelling and grammar, neither of which were ever my strong point in school. Though that's what happens when you spend half the year studying shakespeare in olde english instead of learning modern English and grammar, not that i paid any attention anyway - Noughts and Crosses and hangman at the back of the classroom was much more fun!!

Print off 3 copies - Give him 2 to sign but keep the 3rd as your copy. Also get him to sign and date a confirmation letter that he received a letter from you.

[teaboy2]

Re: tupe transfer

Correct Section21 of the Solicitors Act 1974.
Hence the comments in post 11

Cheers des, I thought so!

[jaxkevla]

Re: tupe transfer

He has told us he doesn't have a copy of his contract and when we previously gave him letters his wife responded by saying without seeing the contract we are referring to they cant accept or not to our request. So do i have to issue a copy of his contract with the letter even though its not signed can she say it isn't worth the paper its written on, i know i seem to be playing devils advocate but i need to be sure we can sort this once and for all.

[teaboy2]

Re: tupe transfer

He has told us he doesn't have a copy of his contract and when we previously gave him letters his wife responded by saying without seeing the contract we are referring to they cant accept or not to our request. So do i have to issue a copy of his contract with the letter even though its not signed can she say it isn't worth the paper its written on, i know i seem to be playing devils advocate but i need to be sure we can sort this once and for all.

Yes send them a copy of the contract, is they dispute it as being his contract you can simply say well it doesn't matter whether he signed it our not (Farnsworth &Another v Lacy & ors(2012) EWHC 2830 the High court found that an employer can rely on an unsigned contract - present that to little miss stick you nose in where it doesn't belong and see her squirm), this contract is c opy of the contract that would have been presented to him at the time he was given the job by the previous owner of the company, hence the last owners company details on the contract and all staffs contracts include the same clause. So if he doesn't have a copy and no signed copy was returned by him to the previous owner, than lack of returning said signed copy is deemed acceptance of the contract and the terms therein (silence is deemed acceptance). They can not argue otherwise just because they the terms no longer suit them. They are also responsible for ensure they keep a copy of the contract handed to them safe and in their possession!

I assume all staffs contracts are the same, with the same clause (Doesn't matter is contracted hours are different)? Do you haves signed copies of contracts from the rest or majority of the staff? If so this will strenghen your position if they choose to argue.

End of the day, the facts are you have a copy of the original contract that has the original previous employers company details on it, and such contract transfers over to yourself under TUPE. They have no copy of the contract, so have nothing to base any claim of argument on about whether the clause was in the contract or not.

Ultimately if they argue about it with you. You could just turn round and say is "Right.. Well you obviously do not agree to short time working and its highly unlikely that you would agree to lay off. Therefore i shall have no choice but to make your position redundant - I made this clear in the letter informing you that we would like to placer you on short time work. So choice is yours!! As the business can not afford to keep you on an 19hour a week contract until the businesses financial and economic situation improves to the point were we can give you those 19.5hrs a week. So its either make you redundant and save the business and the jobs of all the other members of staff, or give in to your selfish demands that fail to take in to consideration the threat to the jobs and livelihoods of your colleges, and end up with the business going bust, where everyone will lose their jobs - am sure your colleges will thank you for that!!"

[jaxkevla]

Re: tupe transfer

Thank you sooo much for your assistance hopefully that will do it . I will let you know how we get on .

[jaxkevla]

Re: tupe transfer

Well its happened, i issued the letter as advised on here last week on the 16th October, i received a response yesterday he worked his shift and put the letter on the stairs to the private quarters and didn't mention it. I found it when i went to get the dog down to go out approx. 12.30am. the best way to do this is to post the complete letter minus personal details, by the way it's dated the 21st October but wasn't delivered till 23/24th.

Dear ....

Re: Short Time Work

I write in response to your letter dated the 16th October stating that you wish to place me on short time work and that you are entitled to do this under contract.
I have taken independent legal advice as to my position and write to confirm that i do not agree to my contracted hours being reduced.
You have not provided me with any signed contract and i do not believe that any such contract exists. What you have provided me with is a contract dated over 2 years after my initial start date which is unsigned.
As you are aware i commenced working at the pub in February 2008 for -- and --.Some time later - became landlord and sometime after this he explained that i had never had a contract but the brewery were trying to give everyone contracts. When a draft contract was provided it included terms which were not part of my employment and had not been for the entire duration of my contract. This contract was therefore sent back to the brewery for alteration. In particular contract there had been aq clause relating to lay off which was sent back for removal as this is not a standard clause for this type of business and has never been necessarily in the previous two years aqnd was therfore to be removed.
You have provided me with a copy of an unsigned contract. This could not be the contract which i was asked to review by - as the hours do not tie in with the hours which worked at that time. Until January 2013 i was working 20.5 hours (or more sometimes) but had to reduce my hours due to my day job hours changing and therefore reduced my hours by 1 hour. Until this time i had never worked 19.5 hours.
I have never received the amended contract back from the brewery and therefore my contract remains that of implied terms and custom and practice which have existed for the past 5+ years. For many years now i have worked over the 19.5 hours a week and have never had to had my hours reduced, unless at my request due to other work commitments.
All of the above means that you are trying to rely on an invalid contract. You therefore have no contractual right to reduce my hours.
In addition to the above t is not custom and practice in this pub, or in the industry in general to lay off staff.
You state that under TUPE you are 'merely enacting a clause written within that same contract'. This may be correct if you had a valid contract to enforce. You do not. You have constantly tried to reduce my hours since you took over at the pub and you are deliberately trying to place me at a material detriment by reason of transfer which is a breach of TUPE regulations and would amount to an unfair dismissal/constructive dismissal if you tried to reduce my hours of dismiss me.
In addition to all of the above you failed to properly inform and consult before the transfer took place. This in itself is a breach of the TUPE regulations.
Whilst writing i feel it appropriate to point out that your letter states you will not discuss this matter with my wife. You have only spoken to my wife on one occasion and this was when she attended the pub at your request to try and discuss matters. Since that date all correspondence has been addressed to me and replied by me.
I have been informed that you have discussed my employment with some of the regular customers of the pub. I would ne grateful if you would refrain from doing this as i feel this is a personal matter which should not be discussed with any third parties.
In summary i will not be accepting your offer of reduced hours or taking voluntary redundancy and will continue to present myself for work for my usual shifts.
Yours sincerely.
This is an exact copy of the letter including typo as received, so pls help me again and advise as necessary.

[teaboy2]

Re: tupe transfer

Well its happened, i issued the letter as advised on here last week on the 16th October, i received a response yesterday he worked his shift and put the letter on the stairs to the private quarters and didn't mention it. I found it when i went to get the dog down to go out approx. 12.30am. the best way to do this is to post the complete letter minus personal details, by the way it's dated the 21st October but wasn't delivered till 23/24th.

Dear ....

Re: Short Time Work

I write in response to your letter dated the 16th October stating that you wish to place me on short time work and that you are entitled to do this under contract.
I have taken independent legal advice as to my position and write to confirm that i do not agree to my contracted hours being reduced.
You have not provided me with any signed contract and i do not believe that any such contract exists. What you have provided me with is a contract dated over 2 years after my initial start date which is unsigned.
As you are aware i commenced working at the pub in February 2008 for -- and --.Some time later - became landlord and sometime after this he explained that i had never had a contract but the brewery were trying to give everyone contracts. When a draft contract was provided it included terms which were not part of my employment and had not been for the entire duration of my contract. This contract was therefore sent back to the brewery for alteration. In particular contract there had been aq clause relating to lay off which was sent back for removal as this is not a standard clause for this type of business and has never been necessarily in the previous two years aqnd was therfore to be removed.
You have provided me with a copy of an unsigned contract. This could not be the contract which i was asked to review by - as the hours do not tie in with the hours which worked at that time. Until January 2013 i was working 20.5 hours (or more sometimes) but had to reduce my hours due to my day job hours changing and therefore reduced my hours by 1 hour. Until this time i had never worked 19.5 hours.
I have never received the amended contract back from the brewery and therefore my contract remains that of implied terms and custom and practice which have existed for the past 5+ years. For many years now i have worked over the 19.5 hours a week and have never had to had my hours reduced, unless at my request due to other work commitments.
All of the above means that you are trying to rely on an invalid contract. You therefore have no contractual right to reduce my hours.
In addition to the above t is not custom and practice in this pub, or in the industry in general to lay off staff.
You state that under TUPE you are 'merely enacting a clause written within that same contract'. This may be correct if you had a valid contract to enforce. You do not. You have constantly tried to reduce my hours since you took over at the pub and you are deliberately trying to place me at a material detriment by reason of transfer which is a breach of TUPE regulations and would amount to an unfair dismissal/constructive dismissal if you tried to reduce my hours of dismiss me.
In addition to all of the above you failed to properly inform and consult before the transfer took place. This in itself is a breach of the TUPE regulations.
Whilst writing i feel it appropriate to point out that your letter states you will not discuss this matter with my wife. You have only spoken to my wife on one occasion and this was when she attended the pub at your request to try and discuss matters. Since that date all correspondence has been addressed to me and replied by me.
I have been informed that you have discussed my employment with some of the regular customers of the pub. I would ne grateful if you would refrain from doing this as i feel this is a personal matter which should not be discussed with any third parties.
In summary i will not be accepting your offer of reduced hours or taking voluntary redundancy and will continue to present myself for work for my usual shifts.
Yours sincerely.
This is an exact copy of the letter including typo as received, so pls help me again and advise as necessary.

Right, well what he said about the contract changes things a bit, as basically if what hes saying is true, then he is correct. Though all that means is that he has now put himself in a position where by refusing to do reduced hours you have no alternative but to make his position redundant (which would not be unfair, given its for financial and economic business reasons, and he has now clearly refused to your offer of reduced hours). First get confirmation from the brewery etc about what he claims is the case regarding his contract. By the way, you haven't breached TUPE as you were not aware he never signed the contract and were informed all employees where on the same contract and he already voluntarily agreed to different shifts.

Once you get confirmation from the brewery you get back to us for more advice, but i see no problem in your starting the redundancy procedure, but make sure you give the correct notice period based on his length of time at the company. And if its true and you have discussed his employment with customers, then do not do it again as its a breach of data protection.

You may which to approach him and say, look you weren't aware of the issue with the contract and were off the understanding when you took over that everyone was on the same contract. Either way, you can not as a business continue to afford to give him the hours he is working so its a simple matter or giving him reduced hours or make his position redundant, the latter being the last thing you want to do, but will be forced to do in order to keep the business from closing down.

If you do decide to make his position redundant, then work out where you can save hours with other staff too, and then inform them about the business situation ask them if they are willing to reduce there hours and see if you can get a compromise through the other staff reducing there hours instead. If not then tell them redundancies will be your only other option. Also put everything said in the meeting in writing to all staff too.

Redundancy rights - https://www.gov.uk/redundant-your-rights/overview

Despite what he has said in the letter about the contract he has basically made a mistake, as hes basically calling your bluff by trying to scare you into not making him redundant, but his mistake is, that he would have no comeback or no case for unfair dismissal due to the redundancy being for economic and financial reasons, and given that you have offered him alternative hours and therefore done everything you can in trying to avoid making him redundant, he hasn't realised that and if he has then hes made a stupid error that will end up with him being made redundant. Though beware, you will have to show that you tried to cut hours of other staff to in order to avoid making redundancies, hence my paragraph above about asking other staff to work reduced hours.