TUPE

[Hammertime]

I was wondering if anyone could offer advice..

Until last year, I worked for company A, a company providing a service to a client (govt contract). We were told we must TUPE to company B (a large employment agency/company) as they were now providing the service on behalf of company A. The TUPE went ahead last year, we were told Company B now owned that work thus it was a valid TUPE.

Now company A has lost the contract and it to be ran by Company C. Where do employers of company B stand in relation to TUPE as any agreement between Company A and Company B was independent of the original contract awarded by the govt?

Do company C (the incoming provider) have any obligations to the employees of company B?

Apologies in advance if this makes no sense. The TUPE situation seemed a little nonsensical in the first place and it seemed like it was just a way to reduce the wage/employee liability for company A.

[charitynjw]

Re: TUPE

A TUPE protects the rights of an employee when company A is taken over by company B; the existing contract of employment & employment 'history' of that employee will be assumed by the new company.

It does not guarantee that company B will have a right to any commercial contracts - these are subject to market forces, company policy, etc.

Your rights will be for areas such as unfair dismissal, wages, redundancy & the like.

Are you a union member?

[Hammertime]

Re: TUPE

A TUPE protects the rights of an employee when company A is taken over by company B; the existing contract of employment & employment 'history' of that employee will be assumed by the new company.

It does not guarantee that company B will have a right to any commercial contracts - these are subject to market forces, company policy, etc.

Your rights will be for areas such as unfair dismissal, wages, redundancy & the like.

Are you a union member?

Thanks.

Nobody is a member of a trade union. You confirmed my suspicions that we'd not have any protection. My suspicions are that the TUPE situation was engineered with this in mind. We were told that our work was now owned by Company B but now that Company A has lost the contract and Company C owns it, including our work, surely that means the work never transferred in the first place and the TUPE was illegal?

Is there any way of challenging such a thing well over a year after TUPE? Or is it just going to be a case of making claims for unfair dismissal and the likes if/when our contracts are terminated?

As it happens, it seems someone is going to continue to provide our services from the same location, it seems company C is outsourcing it. If they choose to outsource it to Company B, would that mean we'd simply carry on unaffected?

It seems to be that we were put into a worse position, protection wise by the TUPE last year?

[mariefab]

Re: TUPE

If the work required to carry out the contract remains essentially the same and there was a set group of employees performing that work; it's likely that TUPE will apply.
Especially with a government contract, because they usually ask companies to tender their bids assuming that TUPE will apply.

It would qualify as a service provision change. See 3(b)(ii) below:

http://www.legislation.gov.uk/uksi/2...ulation/3/made


So, it wouldn't matter that A sub-contracted the work to B, unless the agency B materially changed how the staff was assigned. For example, by constantly sending different employeees, as available, to perform the work instead of an assigned group.

There are other things though that could make TUPE inapplicable. For example, if C only uses self-employed workers or the contract itself is changing.

Do you know the date that C is to take over the contract?
What, if anything has your current employer B told you about what happens next?

[Hammertime]

Re: TUPE

If the work required to carry out the contract remains essentially the same and there was a set group of employees performing that work; it's likely that TUPE will apply.
Especially with a government contract, because they usually ask companies to tender their bids assuming that TUPE will apply.

It would qualify as a service provision change. See 3(b)(ii) below:

http://www.legislation.gov.uk/uksi/2...ulation/3/made


So, it wouldn't matter that A sub-contracted the work to B, unless the agency B materially changed how the staff was assigned. For example, by constantly sending different employeees, as available, to perform the work instead of an assigned group.

There are other things though that could make TUPE inapplicable. For example, if C only uses self-employed workers or the contract itself is changing.

Do you know the date that C is to take over the contract?
What, if anything has your current employer B told you about what happens next?

Thanks, that's very helpful.

There is no set date, as of yet, for company C. Our current employer hasn't communicated anything as of yet. The only communication came from our ex employer (Company A) announcing they did not bid for the contract and who the incoming provider was and their intention to set up in the same location where we currently work.

It is a govt contract, so maybe that's good for us? It would make most sense to TUPE over to company C or D (there actually may well be a company D involved as the tender notice mentions they're subcontracting out our function.)

I think, as long as it's possible, they'll TUPE us from Company B to C or D. I'm just not sure what their obligations are, or whether Company A would terminate it's agreement with Company B pre tansfer and take us back into company A before transferring to Company C/D.

It's all very complicated!! It's a totally new contract though, the govt has stipulated that IT contracts for the govt must adhere to certain rules going forward (FITS).

[mariefab]

Re: TUPE

Perhaps you could ask Company A for the date that the current contract is due to end.
That way you'll know to start chasing things up if you haven't had any further information or consultation around a month before that date.

[Hammertime]

Re: TUPE

Perhaps you could ask Company A for the date that the current contract is due to end.
That way you'll know to start chasing things up if you haven't had any further information or consultation around a month before that date.

It's not for a while yet. Interim 2 year agreement was signed about a year ago now. So I make it a year, or thereabouts. I think they might do the handover quicker as Company A are looking to win other contracts within the same overall deal. (It used to be one contract but it's broken down as per FITS).