Objecting to TUPE Transfer time limit.

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

Ok well i just checked regarding qualifying period for redundancy under section 7 of the transfer of undertakings (protection of employment) regulations 2006. And unlikes unfairness in normal redundancy cases, there is a 2 year qualify period, unfortunately. However if others are in the same role as you that currently work for the new company and they are not subjected to redundancy, then it will be unfair redundancy under normal redundancy process which is automatic unfair dismissal that carries no qualifying period.

So is their any in the new company that work in the same role as you? If so are they facing redundancy too?

Off course you can still object to the transfer as per my earlier post along with everyone else effected, as even if you don't meet the qualifying period the others may well do, so it would be of use to them and that alone may make the companies involved rethink the whole thing.

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

Hi, thanks for your replies.

The new company is a IT Solutions provider, they have there own field engineers etc. However they don't have a System Administrator

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

Ok - Is the new company buying the old company out?

Or is it a case the new company is going to provide the old company with the outsourced IT provisions and your simply being transferred to the new company due to that?

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

Yes, its the second one.

New company is provding all IT solutions to old company (ie outsourcing IT) and as I am IT staff of the old company I am getting TUPED across.

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

In that case object to the transfer - As really their is not need to even transfer your employment over to the new company! As you cans till provide the necessary requirements to assist the transfer of IT provisions etc to the new company whilst still an employee of the old company. Also state what i stated back in post #8 as well!

Have you contacted ACAS yet as i recommended earlier?

are you the only system administrator working for the old company?

I know i asking lots of questions but its purely so i have a clear picture of the situation so i can give you the best advice i can.

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

Thanks, I will. If I reject as per your advice, is it different to rejecting it like I mentioned in post 1, ie leaving.

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

Yes, you do not need to resign, you can simply reject the transfer. Then its up to them if they terminate your employment via giving you notice or via redundancy or if they offer you an alternative position in the old company. Hell they could even guarantee you a new position in the new company where your not at risk of redundancy. The whole point of consultancy period is to resolve such matters in the interests of both parties. However, should the old company dismiss you, or make you redundant, then the question as to whether doing so is fair or not, depends on how they go about it. And its likely they will overlook something that could well prove the difference from being fair and unfair.

p.s. i added some questions to my last post after i initially posted it. Could you answer them please?

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

Thanks, there is an IT Manager and myself The Systems Administrator. Thanks for all your advice so far.

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

Is the IT Manager also facing TUPE and redundancy, or one or the other?

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

Yes, we both are. The part relating to them on the letter I got said:

As from 1st June 2015, NEWCOMPANY will be providing IT maintenance and support services to us from ADDRESS
In any event, NEWCOMPANY has a staff structure and service provision within which there is no level of IT Manager, nor do they envisage that such role could be supported within the current staff structure. NEWCOMPANY therefore envisages that for economic, technical and organisational reasons, the role of IT Manager will be at risk of redundancy following the proposed transfer. NEWCOMPANY will consult with the relevant employee and follow proper procedures in relation to any redundancies. NEWCOMPANY will not make any final decision until the consultation process has been completed. NEWCOMPANYenvisage that the IT Manager will remain based on site at our XXX office whilst consultation is carried out.

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

What after being transferred? That would be unfair dismissal under section 7 subsections 2 and 3 of the transfer of undertakings (protection of employment) regulations 2006 - I take it the IT manager has been their more than 2 years?

[stevemLS]

Re: Objecting to TUPE Transfer time limit.

What after being transferred? That would be unfair dismissal under section 7 subsections 2 and 3 of the transfer of undertakings (protection of employment) regulations 2006 - I take it the IT manager has been their more than 2 years?

I am no TUPE expert but fear you may be misinterpreting Reg 7?

Regulation 7(1) says that where either before or after the transfer, an employee is dismissed then that swhall be treated as an unfair dismissal if the sole or principal reason for the dismissal is the transfer.

Regulation 7(2), however, goes on to say that if the sole or princpal reason for the dismissal is an "economic, techniical or organisational reason entailing changes to the workforce of either the transferor or the transferee" then (Regulation 7(3)(a) Regulation 7(1) does not apply

OP can, of course, object to being transferred but I can't see it would be to their advantage as they would then be facing redundancy and with their length of service there would be no right to a redundancy payment.

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

Thanks for all your replies.

Basically I just wondered if I could reject and resign at the last minute (if I got another job).

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

I am no TUPE expert but fear you may be misinterpreting Reg 7?

Regulation 7(1) says that where either before or after the transfer, an employee is dismissed then that swhall be treated as an unfair dismissal if the sole or principal reason for the dismissal is the transfer.

Regulation 7(2), however, goes on to say that if the sole or princpal reason for the dismissal is an "economic, techniical or organisational reason entailing changes to the workforce of either the transferor or the transferee" then (Regulation 7(3)(a) Regulation 7(1) does not apply

OP can, of course, object to being transferred but I can't see it would be to their advantage as they would then be facing redundancy and with their length of service there would be no right to a redundancy payment.

Yeah that's the confusing part, as it would then be a matter of standard redundancy in which the fairness test must be applied, and in which case the qualifying period wouldn't be relevant is it was unfair. But determining if they can simply transfer someone to another company in order to make them redundant wouldn't be fair in my view given that the purpose of the transfer primarily to assist in the transfer of IT provisions (outsourcing to the new company by the old company), when they could do that whilst continuing to be employed by the old company, and a standard redudancy procedure is followed. Basically i see no need for their to be a TUPE, perhaps a secondment to the new company is what should be on the table not a transfer under TUPE.

In fact Roadhouse could mention the use of secondments as an alternative to the TUPE, where they are temporarily transferred to work under secondment at the new company, but return to the old company after the secondment has ended. Then they can look at redundancies or offering alternative positions to Roadhouse and others in Roadhouse situation.

Regarding objecting to the TUPE, well either way, objection or not Roaduser will face redundancy, but the if he objects and the old company then starts making redundancy, and they do not follow a fair procedure, then the 2 year qualifying period won't apply like it does for unfair dismissal under TUPE.

[stevemLS]

Re: Objecting to TUPE Transfer time limit.

I think the secondment as an alternative to transfer is a good suggestion Roadhouse can put forward during his consultation meeting, as you say with then standard redundancy arrangements applying going forward, particularly with the duty to attempt to secure alternative jobs.

I do think both Employer A and Employer B could argue that it the function is transferring in the knowledge that it would then be outsourced (which could then carry further TUPE obligations on employer B) and so that was a technical and/or organisational reason and so any subsequent dismissal by Employer B was fair, by reason of the disapplication of Reg 7(1).

Answering Roadhouse #28 directly, yes, you can reject and resign, your resignation would be subject to whatever notice period is given in your contract although in the circumstances, your current employer may well be flexible in that respect.