Objecting to TUPE Transfer time limit.

[roadhouse]

Hi,

My job is getting TUPE'D across to a new company on 1st June, the consultation process starts tomorrow (11th), and I will be made redundant a few months later due to an ETO reason no doubt. (Someone in HR has tipped me off!)

I just wondered if there a time limit to object to the transfer, and effectively resign. I have almost found another job and I have only been at my current role less than a year so I am not entitled to any redundancy etc.

Basically if I got a job on the 30th May, could I officially object to the transfer and leave on the 31st May? There are several of us getting transferred so I won't be leaving them in the lurch so to speak.

Ideally this won't happen but I am aware I might not have anything lined up for another week.

Thanks.

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

Can you elaborate as to what the "ETO reason" was please?

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

Hi,

This is what the letter says:

The majority of the IT services provided by COMPANY are provided remotely. Whilst the IT Systems Administrator will be kept in place on location at our TOWNX office, COMPANY envisage that within 3 to 6 months, they will have acquired sufficient knowledge of our systems at which point there would be a reduced requirement for an IT Systems Administrator on site at our offices. In this situation, the role of IT Systems Administrator would be placed at risk of redundancy. COMPANY would consult with the relevant employee and follow proper procedures in relation to any redundancies; and we are informed they would not make any final decision until the consultation process has been completed.

COMPANY envisage that in around 6 months’ time, it will be in a position to recruit for the role of an additional Field Engineer/Project Engineer. This role would be a remotely based role from client sites across the South East (including London). This role would be available for employees to apply for and priority would be given to those at risk of redundancy at that time. A copy of the job description for the role of Field/Project Engineer is attached.

The bit about a "Field Engineer" seems a bit fishy. However they can do what they want, I have not been there long enough to go to a tribunal!

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

Well actually yes you could go to tribunal, because if the redundancy is unfair in anyway its classed as "Automatic Unfair Dismissal" (not the same as "Unfair Dismissal) and in such cases the 2 year qualifying period to take tribunal action doesn't apply.

But from what i can see they are giving you a consultancy period and have invited you to apply for the alternative roles. So i would suggest you apply for them and see what happens.

However which company is making you redundant? The company your currently with or the new company? - Just so where clear on that part! Because if its the new company as i suspect it is, then as they have notified you they intend to make you redundant for a reason connected with the transfer that is an economic, technical or organisational reason entailing changes in the workforce of either the transferor or the transferee before or after a relevant transfer. Which basically means making you redundant after the transfer just because the new company is making changes to its own IT department and by the sound of it outsourcing, which they clearly started prior to the taking over the old company, means the redundancy would likely be deemed unfair!

Your best bet now is to contact ACAS as they can speak on your behalf to both companies!

Plus ACAS will mediate for you and help you prepare an application to tribunal.

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

Thanks for your response, yes it is the new company.

Basically my current employer is outsourcing their IT function to a new company.

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

And the new company is taking you on but at the same time also outsourcing the role you fill (Which pretty much makes the transfer under TUPE a pointless exercise)? It should be the old company making you redundant not transferring you to the new company for them to make you redundant. Are the two companies connected in anyway, via Directors or ownership?

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

Hi,

The companies are not linked in any way. I think they are taking me on to transfer knowledge before taking over.

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

I would write to your current employer and the new employer informing them you object to the transfer under tupe as the subsequent redundancy would in your opinion be in breach of section 7 subsections 2 and 3 of the transfer of undertakings (protection of employment) regulations 2006. Therefore such redundancy would be unfair dismissal to which you could make a claim to tribunal. The reason it is unfair is due to the fact your role with the new company is to also be outsourced (as per your role with current employer) by the new company and therefore the sole reason for your dismissal (redundancy) is connected to the transfer and based on economic, technical or organisational reason entailing changes in the workforce of either the transferor (old company) or the transferee (new company) before or after a relevant transfer.

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

Thanks. They claim the field engineer position is "So they can expand there presence in the South East", and attached a job description with the letter we got on Monday.

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

Thanks. They claim the field engineer position is "So they can expand there presence in the South East", and attached a job description with the letter we got on Monday.

Yes but they also stated that that role would not be available til 6 months from now and those that apply will be given priority if they are facing redundancy at that time - Key words being "At the time" i.e. 6 months from now. Yes you could still apply for it now and see what happens, as it is a remedy to the current situation your facing if your successful in getting the role of field engineer, but that's if you want it.

You said earlier you only been in your current role for a year, however how long have you worked for the company in total, regardless of role?

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

Thanks, I don't want the new role. Amongst other things they pay is less and requires a car, and/or commuting to London etc.

I might mention this at our consultation tomorrow.

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

Can you tell me how long you have worked for the company as a whole. As you said earlier you only been in your new role for less than a year, but am wondering if what you meant by that was that you had worked for the company in a different role prior to taking on the new role?

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

Sorry, I have only been in my current role for 8 months. (August 2014)

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

Sorry, I have only been in my current role for 8 months. (August 2014)

So prior to taking on the new role you didn't work for the old company at all?

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

So prior to taking on the new role you didn't work for the old company at all?

Yes that is correct.