Tupe issues

[Slarti Bartfast]

Hi, I'm looking for some advice for my wife. Her employer recently sold the business to a third party and we are concerned that laws and the rights of the existing employees may be being contravened. I will explain in points for ease:

1. The employees were not told about the sale and no consultation was held. The former employer actually just turned up one day and introduced the new owner as the new boss. He said there was no previous information given because of "confidentiality".
2. Most staff have been told they no longer have their jobs
3. Remaining staff have had their hours cut
4. Remaining staff have not been given a written contract despite requesting it
5. remaining staff are being paid cash in hand with no payslips

Does anyone have any knowledge or advice they could offer? At the moment my wife and I are quite concerned about the loss of earnings that are going to start really affecting us in the next few weeks, and also about the lack of contract and payslips which just conveys a real sense of job insecurity. It is all very worrying.

[teaboy2]

Re: Tupe issues

They have breached employment law.

1 - They should have had a consultation - Confidentiality is poor excuse and not acceptable, given it effects employees who have a right to know.
2 - Employment contracts are transferred to new owner, they can not vary the hours without the employees consent - Doing so is breach of contract and amounts to unfair and/or constructive dismissal.
3 - Staff can not be laid off, as per section 2 above, contract transfers to new owner, Employee retains all rights, and any job losses should have been treated as redundancies, with full redundancy pay as accured for date the employee started working for the original owner.
4 - The contract with original owner is still in place and merely transferred over to new owner, they can not issue new contracts, though if no written contract was given to employee by original owner within 2 months of starting employment thats a breach of employment rights act. (Does your wife have a written contract from when she first started?
5 - Its unlawful to pay cash in had, employers must pay employees paye, and not providing payslips is also a breach of employment rights act. Its very likely they are not paying income tax and NI, if they are paying cash in hand -hence why its unlawful to do so. (Contact HMRC and report this).

You need to contact ACAS too, and get all other employees, ones still there and the ones that lost their jobs to contact acas and HMRC too. If they have not paid your taxes and NI, your wife will still be liable to pay HMRC it.

P.s. sorry for spelling and grammer, am a bit of a rush at the moment.

[Slarti Bartfast]

Re: Tupe issues

Thanks teaboy2, you've confirmed what I was thinking.

In response to some of your points:

4. My wife had a written contract with the original employer but these were kept by him and both he and the new employer have acted as though this is a clean break, so to speak (for example, stating that it is up to the new employer whether or not he keeps staff, and all employees were given a P45 by the old employer on the day he introduced the new employer). So while there may have been written contracts it may be difficult to prove that they exist (although hours worked could at the very least be proven by previous payslips).

5. This is what I find extremely worrying, both in terms of tax/NI contributions and our tax credit claim. It isn't just an oversight, he appears to be actively resisting doing things by the proper methods and the staff's requests for payslips (and contracts and every ing else) have fallen on deaf ears.

i will definitely follow your advice and contact ACAS and HMRC and ask my wife to tell other employees to do the same. Out of interest, do ACAS have much influence on wayward employers?

[wales01man]

Re: Tupe issues

What is the business if they are paying cash in hand it must take a lot of cash something looks a bit suss here

[teaboy2]

Re: Tupe issues

Thanks teaboy2, you've confirmed what I was thinking.

In response to some of your points:

4. My wife had a written contract with the original employer but these were kept by him and both he and the new employer have acted as though this is a clean break, so to speak (for example, stating that it is up to the new employer whether or not he keeps staff, and all employees were given a P45 by the old employer on the day he introduced the new employer). So while there may have been written contracts it may be difficult to prove that they exist (although hours worked could at the very least be proven by previous payslips). - The old employer should have paid redundancy to those that were given P45's - In this case though, what he has done is automatic unfair dismissal (2 year time limit for tribunal doesn't apply in this case)

5. This is what I find extremely worrying, both in terms of tax/NI contributions and our tax credit claim. It isn't just an oversight, he appears to be actively resisting doing things by the proper methods and the staff's requests for payslips (and contracts and every ing else) have fallen on deaf ears.

i will definitely follow your advice and contact ACAS and HMRC and ask my wife to tell other employees to do the same. Out of interest, do ACAS have much influence on wayward employers?

Acas is a scare tactic at best, as they will contact the employer(s) and tell them their rights and wrongs in blunt terms and offer to mediate to resolve the dispute between employer(s) and employees (inc ex employees). They will also give advice to all employees and support through to tribunal. But more of a worry to the Employer(s) would be HMRC, as tax evasion is a serious offence and HMRC will no doubt be wanting inspect the premises and go over everything with a fine tooth comb.

Lack of a written contract is deminis, as a contract is deemed in place, from acceptance of employment offer, though failure to give you copies within 2 months is a breach of employment rights act. But in your case you can proof employment for your wife, and other employees can proof theirs. Witnesses (employees) in numbers is best way to describe your proof!

[Slarti Bartfast]

Re: Tupe issues

Acas is a scare tactic at best, as they will contact the employer(s) and tell them their rights and wrongs in blunt terms and offer to mediate to resolve the dispute between employer(s) and employees (inc ex employees). They will also give advice to all employees and support through to tribunal. But more of a worry to the Employer(s) would be HMRC, as tax evasion is a serious offence and HMRC will no doubt be wanting inspect the premises and go over everything with a fine tooth comb.

Lack of a written contract is deminis, as a contract is deemed in place, from acceptance of employment offer, though failure to give you copies within 2 months is a breach of employment rights act. But in your case you can proof employment for your wife, and other employees can proof theirs. Witnesses (employees) in numbers is best way to describe your proof!

Everyone was given P45s, including my wife, though I have read that they are sometimes given "for tax purposes" (whatever that means) but I would bet my last pound that the prior employer did so because he thought he could terminate everyone's employment and let the new employer decide who he takes on and under what terms.

Regarding ACAS, perhaps pointing the transgressions of legislation would do the trick. The employer is a young foreign national whose wealthy father has funded a business venture so he may simply think he can do what he wants as he hasn't dealt with our legislation before. An official sounding letter quoting legislation might make him think twice.

[teaboy2]

Re: Tupe issues

Everyone was given P45s, including my wife, though I have read that they are sometimes given "for tax purposes" (whatever that means) but I would bet my last pound that the prior employer did so because he thought he could terminate everyone's employment and let the new employer decide who he takes on and under what terms.

Regarding ACAS, perhaps pointing the transgressions of legislation would do the trick. The employer is a young foreign national whose wealthy father has funded a business venture so he may simply think he can do what he wants as he hasn't dealt with our legislation before. An official sounding letter quoting legislation might make him think twice.

Yes i suspect the P45's were issued to dismiss all employees and to allow the new employer to take on ones of his/her choice. Which is unlawful.

TUPE regulations are Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE)

Employment rights act 1996 -is the other legislation for contract and payslip.

As for the HMRC PAYE and legislations you would be best asking HMRC for details on that.