TUPE and holidays accrued

[jonbr]

Hi everyone

I wonder if someone can advise me?

I work for a recycling company. The companies workforce is supplied by an employment agency. I am one of the workforce.

The company decided to cease working with this agency and brought in a different on. I shall call the first agency.. Agency A and the newer second Agency B.

None of the workforce knew that the company was bringing in a new agency. The first we heard of it was when we were brought into the office one at a time. This new agency told us that come the end of the month (March) they would be supplying the company with workers. We would be working for this new agency from 1st April and everything would be the same . They also advised us to take all our holidays before they took over because this new agency based their holiday year from April to March. So in effect we would start with a clean slate.

Agency A called into the company on the last day of their contract and spoke to us. They said that no matter how often they called Agency B they could not get together to discuss TUPE. I was advised to sign the TUPE agreement to protect my rights, which I did.

As it was already the middle of March not everyone could take their holidays in so short a time so I emailed/telephoned Agency A and asked them to pay me for the outstanding holidays I would not be able to take.

Anyway, I am now working for Agency B and all seems well except that when I mentioned my accrued holidays they said I should contact Agency A and get them to pay up.

I have now received a letter from Agency A stating that under TUPE any accrued holidays transfers to the new employer.

So I am at a loss what to do. Agency A says TUPE applies Agency B says not.

[vanman]

Re: TUPE and holidays accrued

found this on :yo:
https://www.gov.uk/transfers-takeove...ment-contracts

Transfers of employment contracts

Under TUPE, the new employer takes over employees’ employment contracts, including:

• all the previous terms and conditions of employment
• any failures of the previous employer to observe employees’ rights (so employees could make a claim for discrimination against the new employer, even if it took place before the transfer)
• holiday entitlement
  
• period of continuous employment - an employee’s start date is the same as before the transfer, so continuous employment isn’t broken
• any collective agreements previously made

It’s a breach of contract if the new employer doesn’t meet the terms of the employment contract.

[ostell]

Re: TUPE and holidays accrued

The problem here is that company B did not take over company A. No doubt company A is still in existence. You have, effectively, moved your employment from company A to company B and it was not a TUPE process. You could have stayed with company A but you would no longer have a job. You have, in effect, resigned from company A and joined company B and unfortunately company A will have to pay any accrued holiday pay.

It was the recycling company that decided to change the suppliers that they used, not companies A and B combining.

[vanman]

Re: TUPE and holidays accrued

Hi everyone

I wonder if someone can advise me?


Agency A called into the company on the last day of their contract and spoke to us. They said that no matter how often they called Agency B they could not get together to discuss TUPE. I was advised to sign the TUPE agreement to protect my rights, which I did.





I have now received a letter from Agency A stating that under TUPE any accrued holidays transfers to the new employer.

So I am at a loss what to do. Agency A says TUPE applies Agency B says not.

The problem here is that company B did not take over company A. No doubt company A is still in existence. You have, effectively, moved your employment from company A to company B and it was not a TUPE process. You could have stayed with company A but you would no longer have a job. You have, in effect, resigned from company A and joined company B and unfortunately company A will have to pay any accrued holiday pay.

It was the recycling company that decided to change the suppliers that they used, not companies A and B combining.

sorry as i read the OP i thought they had said TUPE applies

[ostell]

Re: TUPE and holidays accrued

I don't believe that TUPE applies in this case as the companies concerned are separate entities and are not commercially connected. Of course company A says that holidays accrued are transferred to company B but did company A transfer the cash for the accrued holidays to company B? Probably not. And why should company B pay for holidays that were not accrued during their employment period?

[jonbr]

Re: TUPE and holidays accrued

I have 'googled' for more answers based on your replies and I believe you are absolutely right. I should have mentioned in my opening that the company I work for have a 'core' workforce of permanent employees, and the rest including myself are agency based.
So from your replies and from what I have read, TUPE does not apply in this case. Therefore Agency A owe me for the accrued holidays. Unfortunately Agency A ended their letter to me stating that would not discuss the matter any further.

I guess that I will have to go down the legal route.

Once again, many thanks for your replies, it helped me a lot.

[questions365]

Hi Jonbr,

I just wondered if you could let us know how you got on with this? Did it turn out to be a TUPE case? Who paid your holiday eventually?

Any further information would be really appreciated, I'm currently doing a research project on TUPE and agency workers.

Many thanks in advance!