TUPE and redundancy - settling down period

[clockworks]

8 years ago, I got a permanent job with Company "A", a German-based IT company, who had a joint venture with Company "B", a Japanese IT company.

A couple of years ago, Company "A" decided to get out of IT field maintenance, so the entire department was moved to Company "A-B", the joint venture company.

A few months ago, Company "A" announced that it was terminating it's involvement in Company "A-B", so we would all transfer to Company "B". This would happen on April 1st 2009. Company "A-B" ran a redundancy process to reduce the headcount before the legal transfer started.

Last week it was announced that the transfer to Company "B" falls under TUPE regulations. Several hundred staff are involved, so a full consultation process is starting 1st June.

I believe that there can be no redundancies during the consultation process, and I've heard that there is a settling down period after the transfer during which there can be no mass redundancies.
There is much duplication of roles between Company "A-B" and Company "B" - field engineers, support, logistics, purchasing, payroll, HR, etc., so redundancies are inevitable at some point.

Despite the fact that the TUPE process has been started, all the field supervisors have been told that they must apply for their own jobs. Their numbers will be cut from about 15 to maybe 10 - is this legal?

Is there really a settling down period after TUPE?
If there is, how long?

As soon as the TUPE process was started, I volunteered for redundancy, but was told none were planned. I'm asking these questions to find out how long I'll have to wait before there's a possibility of redundancy.

[Azzin]

Worth a look at the DTI (Dept of Trade & Industry) website, which appears to now be BERR: BERR - Search results

[mjn]

Give ACAS a ring mate.

[eric pisch]

tupe is worthless, it allows the new employer many ways to get rid of staff, all tupe protects is your redundancy / pension rights IT DOES NOT PROTECT YOUR JOB, who cares what your pension is when u have no work and you cant pay your mortgage ..

as part of the tupe setup the new company can say how many staff it intends to make redundant at the outset

after that there are many other get out clauses (thanks to nulabore) that allow them to make further staff redundant when ever they want.

and dont forget redundancy is capped at a max of 20 weeks and a max of £350 ppw so most people wont even get enough to cover 3 months mortgage

I am in the same boat atm ..

[clockworks]

I read through the relevant parts of the TUPE regs - many loopholes that allow the new employer to dismiss staff, as long as they can justify an economic reason. Seems you are only protected in cases where the reason for redundancy is "I don't like his politics, race, religion or sex".

Normal redundancy rules apply all the way through the process - I couldn't see any "settling down" period mentioned. Good news for me, as it means there's a possibility of redundancy in the near future.

Our supervisors have already taken legal advice. As the company haven't put anything in writing yet, nothing can be done. From the verbal communication, it seems that the employer is potentially breaking some rules, but they have to wait before they can pursue this.

Eric:

I know how you are feeling. I was in the same position 11 years ago - mortgage to pay and no job. I didn't even qualify for TUPE, as my employer at the time lost a contract, but no staff were deemed in scope for transfer as that contract didn't constitute a high enough percentage of any individual's work. It was just "last in, first out", so I went.

This time around, my mortgage is paid off and I've got enough savings to see me through to when I can draw my company pensions. May have to get a part-time job to earn "pocket money".

I'm fortunate in that my contract includes decent redundancy terms, based on P60 earnings, plus 3 month's notice. If my calculations are correct, it should be around £20K. Not a huge amount, but I can live off that for 3 years.

The figures you quote are for statutory redundancy pay. Many employers used to offers contracts with much more generous terms. Not so many do these days, though.
Back in the day, when the IT business was good, this kind of thing was added to contracts to entice people to quit their job and take a new one.

[pandemic]

If that's the company I think it is (abbriviated. FS). They do things very carefully and slowly which can be annoying, but they do it by the book. I'd be surprised if they made a cockup.

[branny]

Originally Posted by clockworks

Despite the fact that the TUPE process has been started, all the field supervisors have been told that they must apply for their own jobs. Their numbers will be cut from about 15 to maybe 10 - is this legal?

Is there really a settling down period after TUPE?
If there is, how long?

Aaah TUPE legislation, my favourite subject that I deal with all the time - and a legal minefield!!.

To 'try' and answer your questions -

I am, guessing you are in the due diligence process? Redundancy by your present employer cannot be used to avoid TUPE. However, this would not stop your new employer making redundancies post transfer (on your contractual terms). If these were expected soon after transfer then the new employer is expected to inform this prior to transfer (measures statement).

Settling down periods do not exist.

Additionally, the new employer MUST consult over any measures / changes it intend to make. If you / your colleagues are members of trade unions then they must inform and consult them over the transfer. Are you members of the union? If so, are the union aware of intentions?

[clockworks]

Things always seem to end up being done "by the book", but sometimes mistakes are made at the beginning.

The consultation period is starting next week, although they are struggling to find enough employee reps. We've had 2 redundancy consultation periods in the last 18 months. I guess that everyone is a bit cynical about the whole process.

No organised union, just the odd few members.

The really annoying thing is, we know next to nothing about our new employer - what contracts they have, the size of the workforce, where the field engineers live (very important when it comes to redundancies), etc.

[Azzin]

I've been TUPE'd a couple of times now and the one thing I do remember is that you are only "protected" up to (and I believe including) the day of transfer.

Looking back, we got bullied into changing our pay date (not to our advantage either), as we used to get paid on the 6th of every month (1 week in arrears and 3 in advance), but the new firm wanted to pay us on the 30th with their normal pay run.

We pretty much went along with it, but (in hindsight admittedly), we could have stood our ground and simply refused and there would have been jack all they could have done about it.

The other issue is that we didn't want to off our new employer so we went a along with it, but it was painful as we essentially had to borrow money from the new firm to live so that they could basically not pay us until we then fell into the standard pay run.

[unique]

if you aren't a member of a union, and thus don't have union reps to deal with these for you, i strongly suggest you phone ACAS, and suggest the employees that are forming part of the staff representatives do the same

TUPE is basically there to protect your rights if a new employer takes over, thus you remain on the same pay and hours and benefits, and retain continous employement dates, so if the new employer then made you redundant you wouldn't lose out. any changes to this have to be agreed and accepted by the employee. TUPE certainly isn't a bad thing at all

from what you say, it sounds like the original company is making staff redundant before the new company takes over. this makes sense, as it avoids the new company having to make them redundant themselves

depending on the number of redundancies at a location depends on the length of consultation period, it's 90 days if over 99 staff, then notice has to be served after that is over. from what you suggest, this hasn't happened, but i get the impression it's a large organisation with many jobs, so if they are having to reduce staff a lot, then they would have to have the consultation. perhaps they are reducing most of the staff before the TUPE, and then will review things afterwards, with the hope to only have to reduce a few staff, thus they may not require a 90 day or even 30 day consultation period

basically in any job and pretty much any time you can face redundancy, so whilst this is happening, it doesn't necesarily mean you will ultimately be viewing a redundancy situation

in order to change someones job by a major part, usually the process is to make the old post redundant and offer a new one with the new terms, and you apply if you want to accept the new post. that sounds like the reason some staff are having to apply for new jobs. this can also coincide with staff reductions, thus 10 posts doing 1 thing are made redundant and 5 new posts doing something slightly different are available. if you end up in the position where they are reducing posts, it doesn't necesarily mean that you will be made redundant yourself, if they follow a fair selection process you could end up being a better qualified or experience person and get the job over someone else, so try not to worry too much about losing your job at this point

[clockworks]

The last time we were in a TUPE situation (around 40 staff were being transferred out when we lost a contract), the HR people sat in on the meetings. They actually seemed very clued-up on the legal side, putting the management team straight. By the time it got to these meetings, everything was above board and by the book.
It seems that the "misunderstandings" creep in when it's the management people running the show, before HR get fully involved.

Our regional rep has been taking advice (his father-in-law has recently retired from ACAS). As of yesterday, he was the only rep nominated out of 14 regions. The deadline for electing reps is Monday. Seems to be a lot of apathy around.

I've been getting steadily more depressed over the past 18 months with all the uncertainty. Last Friday, I decided that I'd had enough, so I emailed my manager asking for redundancy. I figured that, since I plan to retire at 55, and that's only 3 years away, I might as well take the money and go now. I can't carry on like this for another 3 years.

Monday lunchtime, I got a call from my manager. He seemed genuinely shocked at how I was feeling. I think that I was the first person to ask to be made redundant on these grounds.
30 minutes later I got a call from an HR lady. Spoke to her for 45 minutes.

Ended up getting booked in for 6 one-to-one counselling sessions, at the company's expense. Problem is, it's "person-centred" counselling. By all accounts, this won't suit me. Apparently, I'll respond better to CBT or NLP. The other alternative is to see my GP, probably get signed off for a few months - I don't want to get put on SRIs (Prozac). NHS counselling (if you can get it) is mostly "person-centred" as well - they haven't got the CBT counsellors in place yet.

The company seems very keen to avoid things getting worse. Not sure if this is because they genuinely value my work, or because it'll cost them money.
I certainly got the impression that my job will be fairly safe after the transfer, I'm just not sure I want it.

[unique]

you can't put in a request for voluntary redundancy unless there is a redundancy situation, and there is a call for voluntary redundancy, otherwise you are making your company aware that you aren't happy with your job and they may look at ways to end your employment when you least expect

[C.R]

Can anyone help?
I worked for company 'A' for 10 years, then a company decision was made to change my shop to one of there subsidiary companys (company 'B') in April 2008.
We were never consulted nor were we ever issued a new contract.
In Feb 2009 company B went into administration.
Please advise as we are currently waiting for a tribunal date.

[unique]

Originally Posted by C.R

Can anyone help?
I worked for company 'A' for 10 years, then a company decision was made to change my shop to one of there subsidiary companys (company 'B') in April 2008.
We were never consulted nor were we ever issued a new contract.
In Feb 2009 company B went into administration.
Please advise as we are currently waiting for a tribunal date.

your existing terms and conditions of employment would remain from the first company, and you would have continous employment rights since then

i'm not sure what your exact question is, but if the company went into administration and can't pay the bills, you would get your redundancy pay from the government, capped at £350 per week, it looks like about 11 years service?

normally ACAS would be notified and get involved before a tribunal takes place, you could try calling them for free advice. i don't think a tribunal can continue if the company has stopped trading, and if it's in administration and is insolvent, and tribunal award would be limited or pointless if they have no money left

[C.R]

Sorry, my question is that as employers don't they have to sit down and consult each employee regarding the tupe of our contract and this was not done!!! Company 'A' is still trading and they are partly respondsiliby aren't they??? What I also forgot to state was when we changed over we still had the same area manager and also I was still working in some of company 'A's stores.