Objecting to TUPE Transfer time limit.

[teaboy2]

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.

Yeah i agree, i think objecting to the TUPE and bringing up the secondment option as an alternative to TUPE is the best way forward. Primarily in the hope that the companies agree and therefore mean any redundancies would have to adhere to standard fairness and offer of alternative positions made etc and be carried out by the old company rather than the new company - Though off course there is nothing stopping the new company offering roles to Roaduser and others effected either.

[SPQR]

Re: Objecting to TUPE Transfer time limit.

Basically if I got a job on the 30th May, could I officially object to the transfer and leave on the 31st May?

Yes: If you object to the transfer on or before 31st May, then your employment will end on 31st May (reg. 4(7) TUPE 2006).

This will not count as a dismissal (subject to exceptions that don't apply here) and you will have no right to redundancy pay. I would only advise this option if you have another job lined up.

[SPQR]

Re: Objecting to TUPE Transfer time limit.

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.

The two year qualifying period for unfair dismissals does apply.

Sorry roadhouse you will not have a claim for unfair dismissal.

[I covered this in employment law module two weeks ago, and my tutor was very clear:
Reg 7(1) TUPE states that if the employee is dismissed as a result of the transfer this is treated as unfair dismissal for the purposes of Part 10 of the 1996 Act.
The two year qualifying period for unfair dismissals applies for all cases except where section 108(3) Employment Right Act 1996 applies. Section 108(3) does not apply here.]

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

Thanks for all your replies, I have learnt a lot.

[stevemLS]

Re: Objecting to TUPE Transfer time limit.

The two year qualifying period for unfair dismissals does apply.

Sorry roadhouse you will not have a claim for unfair dismissal.

[I covered this in employment law module two weeks ago, and my tutor was very clear:
Reg 7(1) TUPE states that if the employee is dismissed as a result of the transfer this is treated as unfair dismissal for the purposes of Part 10 of the 1996 Act.
The two year qualifying period for unfair dismissals applies for all cases except where section 108(3) Employment Right Act 1996 applies. Section 108(3) does not apply here.]

See post #27 for reasoning why 7(1) does not apply in this instance.

[SPQR]

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.

I believe that you overlooked the application of Regulation 7(3)(b).

• If the dismissal is due to the TUPE transfer then it automatically unfair dismissal (subject to s.108 ERA) under r.7(1) TUPE unless an ETO reason applies.
• If an ETO reason (under r.7(2)) does apply then per r.7(3)(a) the TUPE the dismissal is not automatically unfair (disapplication of r.7(1)). However, under r.7(3)(b) there is still a dismissal under Employment Rights Act 1996. The dismissal is always a potentially fair reason under s.98(1) ERA, but there still needs to be fairness in all the circumstances under s.98(4) ERA.

The point I was making is that regardless of whether there is an ETO reason or not, under s.108 ERA 1996 the employee must have two years qualifying service for a unfair dismissal claim by reason of a TUPE dismissal.

Thus on these facts I would argue that there is an unfair dismissal in that even if there is an ETO reason, there does not appear to be fairness in all the circumstances (if the company already knows pre-consultation who is being made redundant). But as roadhouse does not have two years qualifying service he cannot claim).

[stevemLS]

Re: Objecting to TUPE Transfer time limit.

I see your point, I had thought about that and discounted it.

Essentially, Roadhouse is being asked to transfer and then "dig his own grave" insofar as he will be doing work preparatory to his own job becoming redundant.

In any event, their course of action is dependant on whether they want to cling on to their job as long as possible since they are eligible neither to a redundancy payment nor to bring a claim for unfair dismissal.

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

I see your point, I had thought about that and discounted it.

Essentially, Roadhouse is being asked to transfer and then "dig his own grave" insofar as he will be doing work preparatory to his own job becoming redundant.

In any event, their course of action is dependant on whether they want to cling on to their job as long as possible since they are eligible neither to a redundancy payment nor to bring a claim for unfair dismissal.

Thanks, that sums it up nicely. I basically want to get out ASAP, but with something else lined up.

Ideally this would happen before the transfer date, but its looking unlikely and I will have to give notice.

Thanks once again to all the replies.

[stevemLS]

Re: Objecting to TUPE Transfer time limit.

Roadhouse - you might want to take a calculated risk that nobody is going to hold you to a notice period in all the circumstances, I don't know about anyone else but I have never heard of an employer taking action for breach of contract against a (no offence) "run of the mill" employee for failing to honour a notice period.

[SPQR]

Re: Objecting to TUPE Transfer time limit.

Roadhouse - you might want to take a calculated risk that nobody is going to hold you to a notice period in all the circumstances, I don't know about anyone else but I have never heard of an employer taking action for breach of contract against a (no offence) "run of the mill" employee for failing to honour a notice period.

As per post #32: Provided an employee objects to a TUPE transfer prior to the date of the transfer, the effect is that their employment is terminated on the date of transfer (regs. 4(7),(8) TUPE 2006). There is therefore no requirement to fulfil any notice period.

[stevemLS]

Re: Objecting to TUPE Transfer time limit.

Yes, I realise that - I was talking about his not objecting, transferring and then wanting to get out quick having found something else.

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

The two year qualifying period for unfair dismissals does apply.

Sorry roadhouse you will not have a claim for unfair dismissal.

[I covered this in employment law module two weeks ago, and my tutor was very clear:
Reg 7(1) TUPE states that if the employee is dismissed as a result of the transfer this is treated as unfair dismissal for the purposes of Part 10 of the 1996 Act.
The two year qualifying period for unfair dismissals applies for all cases except where section 108(3) Employment Right Act 1996 applies. Section 108(3) does not apply here.]

Reg 7 would apply only if it was the new company that was making him redundant, not if it was the old company (whom i was referring to in the part of my post you quoted) that made him redundant, which for the reasons below i believe the old company is likely to do, instead of allowing his employment to end on the 31st and loose his expertise.

I doubt that his employment will end, as they clearly (both companies) require his experience and knowledge to implement the IT changes they are proposing (hence the whole reason for the proposed TUPE). It would cost them more to bring in a 3rd party than it would to keep RoadUser on at the old company for a few more months and then make him redundant under normal redundancy (which would require them to offer him an alternative role in the company) and not redundancy under TUPE since no transfer will have occurred.

Also a redundancy made under inadmissible grounds, as per section 105 employment rights act 1996 - then there is no 2 year qualifying period.

The only alternative to not objecting and not being out of work is to put forth the idea of a secondment as suggested earlier. That way even though Road user wants out ASAP, he can still look for another job and not end up unemployed for months on end with no wage coming in.

So basically we should forget the whole redundancy under tupe argument as we all no its dead in the water, and instead find way to try keep Roadhouse in a job at the old company, even if it means taking a short term secondment and then take up an alternative role upon his return from the secondment. That's if off course Roaduser wants to try that, instead of ending up unemployed at the end of the month and potentially not able to find a new job for months on end and have no wage to bring home as a result.

[SPQR]

Re: Objecting to TUPE Transfer time limit.

teaboy2 - I'm afraid I have to disagree with you

Reg 7 would apply only if it was the new company that was making him redundant, not if it was the old company ... that made him redundant ...

Reg 7(1) applies whether it is the new or old company that makes him redundant:

• "Where either before or after a relevant transfer, any employee of the transferor or transferee is dismissed, that employee shall be treated for the purposes of Part X of the 1996 Act (unfair dismissal) as unfairly dismissed if the sole or principal reason for his dismissal" (http://www.legislation.gov.uk/uksi/2...ulation/7/made)
• 'The transferor' is the old company (reg 2).

Also a redundancy made under inadmissible grounds, as per section 105 employment rights act 1996 - then there is no 2 year qualifying period.

As I've said before, the two year qualifying period for unfair dismissals applies for all cases except where section 108(3) Employment Right Act 1996 applies. Section 108(3)(h) refers to s.105 and includes only limited redundancy situations, for example if the redundancy was due to trade union activity etc (see s.105(1)(c)).

• ACAS confirms the two year qualifying period in redundancy claims (http://www.acas.org.uk/?articleid=1611)

So basically we should forget the whole redundancy under tupe argument as we all no its dead in the water

I agree but for the reason that the two year qualifying period applies.

and instead find way to try keep Roadhouse in a job at the old company, even if it means taking a short term secondment and then take up an alternative role upon his return from the secondment.

I have been concentrating my answers on roadhouse's question as to whether he could object and then leave work without having to give any notice.

As to options so roadhouse can keep a job: requesting a secondment or suitable alternative employment makes sense.

[roadhouse]

Re: Objecting to TUPE Transfer time limit.

Update: They didn't want to entertain the idea of a secondment and fed me some spin about it being an career opportunity etc.

However, I have a 2nd interview lined up next week and if all goes well I may be in a position to reject the whole thing and resign at the 11th hour. I am aware it will not go down well, but I know it will count as a resignation and they cannot give a negative reference (although they can refuse). If not I will TUPE across and still seek alternative employment.

Thanks once again for all you input.

[teaboy2]

Re: Objecting to TUPE Transfer time limit.

Thanks for the update and good luck on your second interview.

Can't see how it can be and excellent career opportunity when they going to make you redundant a few months down the line?!