TUPE

[littlesally]

The company I work lost their contract to another company.
We are in the very early negotiations for TUPE but it is looking as though they are wanting to cut back on the existing team and replace two workers with 'apprentices'. The apprentice staff will have a one year contract then replaced with another apprentice (maybe go to another project if needed or, more likely, unemployed). I'm guessing this is so they will be kept on a basic rate, never able to earn annual increments.

They say it's to give training to people who are unemployed but have 'skills to be developed' in our sector. To give them a chance.

There are five of us in the team but only three jobs not including the two apprentice jobs.
Surely the new company, by law, have to offer the apprentice positions to those already on the team?

All the jobs look pretty much the same as we already do so under normal circumstances TUPE would be automatic.
But does saying they want apprentices change things?

Seems a very unfair thing to do. We have all been doing this work for many years and are qualified. Apprentices takes time to train.
We'd be losing two workers who know what they're doing and gain two that don't ~ and by the time they do they'll be replaced.

[Sangie595]

Re: TUPE

The company I work lost their contract to another company.
We are in the very early negotiations for TUPE but it is looking as though they are wanting to cut back on the existing team and replace two workers with 'apprentices'. The apprentice staff will have a one year contract then replaced with another apprentice (maybe go to another project if needed or, more likely, unemployed). I'm guessing this is so they will be kept on a basic rate, never able to earn annual increments.

They say it's to give training to people who are unemployed but have 'skills to be developed' in our sector. To give them a chance.

There are five of us in the team but only three jobs not including the two apprentice jobs.
Surely the new company, by law, have to offer the apprentice positions to those already on the team?

All the jobs look pretty much the same as we already do so under normal circumstances TUPE would be automatic.
But does saying they want apprentices change things?

Seems a very unfair thing to do. We have all been doing this work for many years and are qualified. Apprentices takes time to train.
We'd be losing two workers who know what they're doing and gain two that don't ~ and by the time they do they'll be replaced.

For all the mealy- mouthed platitudes, this is nothing but a transparent cost cutting exercise. So no, they don't have to offer the existing staff apprenticeships, because, as toy point out, they are already qualified and experienced. They wouldn't qualify for apprenticeships, and if there are real apprenticeships, I bet someone else is footing part of the bill!

My question would be that it would appear that these are redundancies as a direct result of the TUPE. There does not appear to be any question but that the work continues to be required and that five staff are required to do it. "Training the next generation" (that is, replacing them with cheaper workers) is not supposed to be an option. They haven't even had the courtesy to wait until after the TUPE to introduce their changes. Which might be their downfall. Because they cannot rely on the usual excuses to make changes immediately after TUPE - they are saying up front that they will make changes.

I hope you are all in unions?

[littlesally]

Re: TUPE

I don't think any of us are. I was with Unite but found they were only interested in big news issues.
The last time I was Tuped they gave instructions that actually could have got me sacked then didn't return phone calls.

Are you saying that they can make redundancies and replace with apprentices even though it's the same job?

Wouldnt this be a case for unfair dismissal?

[Sangie595]

Re: TUPE

I don't think any of us are. I was with Unite but found they were only interested in big news issues.
The last time I was Tuped they gave instructions that actually could have got me sacked then didn't return phone calls.

Are you saying that they can make redundancies and replace with apprentices even though it's the same job?

Wouldnt this be a case for unfair dismissal?

I said quite the reverse. I said that I believed there was an argument that this was a direct result of TUPE and possibly a case could be made. Based on very little information. But since you are not in a union, any case you make will have to be your own work I am afraid - you have nobody to help you and even if you can afford a lawyer, they are not obliged to allow a lawyer to attend meetings with you - whereas a union official is. On that basis I think you will have to do a lot of research on TUPE very quickly to get up to speed to a degree that allows you to understand what they can and cannot do.

[littlesally]

Re: TUPE

Thank you.

Will do that. I still get on with my previous employers so their HR maybe some help. Ours just seem to have an attitude of 'not our problem'.

Also I seem to remember that any changes made to contractual hours made recently do not have to be adhered to by the new company. Is this correct and if so what is 'recent'? One of our staff changed from sixteen hours to full time about six months ago

[mystery1]

Re: TUPE

TUPE is a complicated beast.

It does sound iffy though. Have a browse around http://www.employmentcasesupdate.co.uk/ although this could be quite a rare issue i'd have thought.

M1

[Sangie595]

Re: TUPE

Thank you.

Will do that. I still get on with my previous employers so their HR maybe some help. Ours just seem to have an attitude of 'not our problem'.

Also I seem to remember that any changes made to contractual hours made recently do not have to be adhered to by the new company. Is this correct and if so what is 'recent'? One of our staff changed from sixteen hours to full time about six months ago

I doubt this is as rare as Mystery1 thinks it is. I certainly see similar things when public sector contracts go into the private sector - although most of the time they have the courtesy of waiting until after the TUPE to sack people (which is safer for them). Case law is useful - but only after you find the actual law that you think they have broken. You can spend a lot of time reading irrelevant case law, because case law isn't as helpful as people seem to think. The majority of it is never quite close enough to your situation to make it definitely applicable, and with the cost of tribunals (and lawyers) these days, most people can't afford to gamble.

Littlesally, one very valuable piece of advice for you that will last for ever - it doesn't matter who HR work for, they do not work for you. Their job is to protect the employer, and they will help you if doing so protects the employer. If it doesn't, they will squash you like a bug. That is why they won't help you now. It isn't in your employers interests. That is what unions are for, and if you won't join a union then you must either get legal insurance, pay for a lawyer, or do it yourself. BTW, I'm a UNITE official! And I am very interested in the "small news issues" - which is why I am on sites like this. So don't judge us all by one experience. And it may be that whatever the problem you have had, there wasn't anything the union could do about it - we are often having our hands tied by the fact that the law lets employers do lots of things are aren't fair!

The reason why TUPE is complicated is because the actual law isn't very detailed. Or long! Put very simply, it says that your terms and conditions of employment are protected at the point of the transfer and the employer can't change them, ever. Except that clearly isn't practicable in the real world so the law has set up reasons for being able to change them. And it has set up "kind of" timescales in which changes can happen. Some can happen immediately. Others may not. But eventually, and we guess at roughly 18 - 24 months, all those protections are really in the wind. The thing is, the reason your prospective employer has given isn't one of the reasons given! Being "noble" and investing in the future generation of workers isn't one of them. Not that I believe that for a second.

The reasons generally accepted are ETO - that shorthand unpacks as economic, technical or organisational. So, for example, they could say that they cannot afford 5 of you doing this job and that puts the entire service at risk so they are making redundancies. That might, probably would, be ok for them to do. Nobody can ever be sure, because it's up to a tribunal to decide in the end, and guessing what they will say is an art, not a science. And these days it's a costly risk if you guess wrong.

The problem you will have is that this will only affect two of you. And it is the nature of life that the other three will instantly forget everything and everyone - they will not be remotely likely to turn up as a witness for you at a tribunal. They might even turn up as a witness for the employer! And the person doing that might be you! I know that sounds awful and you think you'd never do that sort of thing. But honestly, it is a rare employee who goes against their employer - and usually an employee who doesn't have a job for much longer. So I don't blame people for doing this - everyone has to look after their job. But if 1% of employees are willing to stand up for others at a tribunal, that's probably a generous estimate. I've even known of cases where employees have given evidence for a colleague at hearings and then gone on to change that evidence when it got to a tribunal! Most of us need jobs, and we can't afford to risk them for someone else. So do what you need to do. Make sure that you have your own evidence, and protect yourself. If your colleagues then stand up for you - or you stand up for them - that is a wonderful surprise, and you are in a small group of people whose integrity is unimpeachable. So gather your own evidence, make sure you have copies of anything useful, and work on the basis that you are on your own in this.

[littlesally]

Re: TUPE

I understand that TUPE is very difficult ~ I believe it was set up to protect workers but the many loopholes are manipulated by new companies.

I don't believe for one second that employing apprentices is done for any reason but to save the new company money. Two very qualified people will be unemployed so two unemployed people can be trained. The remaining staff will have to do the training and pick up the slack which will be to the detriment of those we are employed to help.

Because the process has started I can't join a union to help with this. Unite was the union recognised by my company and my experience was dreadful. Their advice brought me close to being dismissed and in six months they returned one phone call ~I was ringing almost weekly, begging them to ring me back.
Only when I replied to one of their 'aren't we great' emails, venting my frustrations did I recieve a reply, which was to tell me that as three months had passed since being TUPED, the new contract was now in place even without my signing. It seems a very basic thing for my union rep to have known.
When I tried to make a complaint I was told that as I only knew his first name there was nothing I could do!

I have been given contacts and have a good relationship with my former employer so will speak to their HR rather than my present one as they have nothing to gain or lose.

Although our team work well together there is already an element of 'I'm better than you' and glory hunting. Neither are my way and I have just let them get on with that. I never really felt the need to glory hunt as long as those we help, benefit.
I love my job, have been doing it for twelve years through many changes and have no desire to do anything else. Sadly I do not sell myself well, although I am very good at my job I find it difficult to put into words what I do. My previous manager is helping with that.
It is frustrating that two of my team are very good at selling themselves, taking credit, using correct phrases etc but neither are seeing their job as a vocation, just a payday until something else comes along.
I do feel quite scared and nervous of what will happen as I can't imagine doing any other work.

[Sangie595]

Re: TUPE

I understand how you feel, but aside from making sure you are well informed, nothing has yet actually happened, and it's impossible to advise further on a non-situation. You can obviously come back when something does happen. At the moment it's all talk.

And if it came to the worst, you might find that you are surprised by it becoming an opportunity instead of a disaster. People often say this to me. But the time to start thinking about what kind of opportunity would be now - think about other jobs or chances. That way if something comes along you are prepared to jump ship. Because even if your job survives this, you may wish it hadn't!

[littlesally]

Re: TUPE

Lol very true.
I had actually looked forward to my present company losing the contract and felt excited by the new company as they are far more forward thinking and in line with my own ideas.
I would very much like to stay but you're right ~ it may not be as it appears on paper.

Thank you for your time x