Any HR/Employment gurus around to answer a quick TUPE question?

m_c

Say you work for a company that is contracted to provide services/goods from one location, and your employer is losing that contract to another company that doesn't employee staff but uses multiple contractors, could you still be TUPE'd to that new company and/or sub contractors?

Funkfingers

Under TUPE regulations, if the exact same job roles continue to exist after the change of contract provider, that new employer is obliged to employ the same individuals, for the same salary, for at least twelve months before they can start messing those employees about. 

A good employer should already have given staff notice that the company's contract period is ending soon and explained the options available to each employee.

If the incoming contract firm is based in a different building or a different town, they could argue that your job role no longer exists. If this is the case, the conversation between you and your current employer will have been restricted to calculating redundancy settlements.  

Probably best to read up on the acas.org.uk website.

EricTheWeary

Your employer should inform you about TUPE. It does sound more like a potential redundancy situation TBH but employer/ union should really advise. 

m_c

I've already had a search, but couldn't find any answer to this situation. Plenty about what TUPE is, and how it works, but nothing when it's not a direct change of employer/contractor.

The issue is the work that is currently being done by 3-4 people on a single site by a single employer, will likely now be spread across far more sites/employers acting as subcontractors to the new contract holder, so although the same job roles/work will still exist, they won't be full time roles as such.

We're waiting on more information, as we've only been told about the contract ending, but it still has a reasonable period left to run, so management are still to have the discussions about what the transition arrangements are going to be.

I know for me personally, I'd be taking the money and running as quickly and as far as possible, but others are more worried about what's going to happen, and the mention of TUPE has them concerned as nobody really knows whether it would be required.

EricTheWeary

When I was a manager I had staff TUPEd to me from two other organisations. Utter admin headache and they all left eventually, not that I wasn't a lovely manager but they were now all working for an organisation in a place that none of them had chosen to be and so just looked for other jobs.  Then I got TUPEd and I was much the same, just felt like someone had made a huge decision in my life and taken all the control off me. Later on my new employer made me redundant but under my old terms which were more generous than they wanted (hoozah) but I certainly didn't want to stay.
I guess people can be very happy with where they arrive after TUPE but my experience of it is largely it's just a way not to be unemployed whilst you look for another job. 

Sorry, from the sound of it you are waiting on your employer to work it out and tell you. It's their responsibility so it's a waiting game unfortunately. 

TTony

Funkfingers said:

Under TUPE regulations, if the exact same job roles continue to exist after the change of contract provider, that new employer is obliged to employ the same individuals, for the same salary, for at least twelve months before they can start messing those employees about. 

Are you sure about that @Funkfingers ?

(Not doubting you btw, just asking for my own clarity).

I understand TUPE where Co A buys Co B and then has an obligation to Co B's employees, and have managed acquisitions where those obligations were carefully adhered to!

But if Co B wins a contract from Co A to supply goods/services to a customer/market, I'd have expected Co B to have its own employees (or contractors in this case) in place, ready to provide those goods/services.  

If Co B is obliged, under TUPE, to take on Co A's existing employees (benefits, etc), then the opportunity for Co B to offer a cheaper and/or better service to the customer by operating more efficiently or using more skilled staff (or whatever) would be constrained by those obligations to Co A's employees.

I'd have thought Co A would have a number of redundant roles as a result of losing the contract.

EricTheWeary

^^^^

TUPE is indefinite. That doesn’t mean contract terms can’t be renegotiated but there is no period after which the new employer can just ignore the TUPE. I did work with someone who had moved on TUPE to an effectively identical organisation but the first one had given him more annual leave. So he had more annual leave than anyone else in the building for several years until he retired. 

(There you go, an example of TUPE working well for someone). 

Barney

We have been through a few TUPE transfers and for us it was just a different t shirt ...all terms and conditions stayed the same ....same people worke there ...maybe a few new manager types in the office but that was it .....I don't think they are allowed to change anything  and also you should get the work before they can contract it out .....that's the way it worked for me but things could be different 

m_c

@TTony I did find some articles covering that scenario, and it's apparently called second generation outsourcing, and TUPE can still apply.


At the moment all we can do is wait until we know more. I was just trying to understand a bit more about the potential options, but it appears nobody really knows about this kind of scenario, but I suspect the new supplier will do their best to avoid TUPE being an option.

m_c

Barney said:

We have been through a few TUPE transfers and for us it was just a different t shirt ...all terms and conditions stayed the same ....same people worke there ...maybe a few new manager types in the office but that was it .....I don't think they are allowed to change anything  and also you should get the work before they can contract it out .....that's the way it worked for me but things could be different 

I've already been TUPE'd once, but as a complete organisation as part of an internal restructure within the parent company, and then the only thing changed was the name of the employer. Everything else remained aligned to the parent company's T&Cs, so in reality it was just a name change on the top of the payslip.

Even when we were sold off a few years ago, nothing changed other than the pension scheme.
I suspect there is a certain management group who would love to cut costs, but they've avoided doing it as they know they'd lose a lot of the experienced staff, and recruitment has been very problematic lately,
Current staff is pretty well split between us long termers who stick it out for the short hours and benefits, and the short termers who've been tempted by longer hours with less benefits, but aren't skilled enough to make more money elsewhere.
If I wanted to remain in the industry, I could walk into another job tomorrow for 10-30k more, but I'd have to sell my soul and work as many hours as possible.

sinbaadi

I understand your concern and TUPE or not, new companies are more likely to change things drastically than incumbents.  I've been there and it's not a nice position to be in.

Your role is protected.  The company bidding for the contract will have been provided with your ELI data and they have to provide for every role listed therein.

This doesn't mean that they will not have a strategy to save money in the medium long term.  I've been on that side of things too.

What they can't do is say that they are going to do it differently so they don't need you.  If the contract has changed hands, they have no choice.  If by some skulduggery the contract has not been won, "new work" is being done and TUPE doesn't apply, then you simply remain in the employ of your current company doing your current job.   (Which wouldn't exist in your case hence skullduggery, and I doubt they could get away with it).

BillDL

A number of delivery drivers at my employer's depot will be facing TUPE at the end of June.  One of our clients has decided to contract its deliveries to another transport company.  On the face of it the drivers will all be TUPEd over to the new transport company to do the same deliveries at the same hourly rate, for the same guaranteed minimum hours per week, and with the same number of paid holidays ...... BUT .... the client announced several weeks ago of its proposed intention of changing from delivering to the stores 6 days a week to 5, and changing some of the delivery runs from night-time to daytime.  I am pretty certain that they will try to push this through before they switch to the new service provider, in which case they may need less drivers to fulfill the contract and hours will have to be changed.  @sinbaadi mentioned "skullduggery".  IF these changes are pushed through before the actual TUPE date that will certainly be a case of underhandedness but I'm not sure whether it will contravene TUPE laws or any other applicable employment legislation, because they made a point of informing us of the proposed changes before announcing the change of contractor, even though we all know that they will have known about the change of contractor for a lot longer than they are letting on.

m_c

Time for an update to this, as it has become an ongoing saga.

We were notified two months ago that numerous depots would be closing at the end of September, however with two weeks to go until closure, discussions are still on going.

The incoming service provider have only sent their employment legal representatives to any meeting regarding staff. They are arguing that TUPE does not apply, as they are providing a different service.
Every other lawyer involved says rewording what they're providing while still essentially providing the same service doesn't mean TUPE does not apply, and there apparently is case law to support this, however they are steadfast in their opinion, despite three other legal teams saying otherwise (Our current employer's, our union's, and the customer's).

However we had it confirmed this week that the customer is contractually liable for any costs in relation to them taking the work elsewhere. But, they are arguing that they are not liable for all the costs in relation my employer deciding to close depots, and only liable for the percentage of work done for them in relation to the total amount of work we done.

So as it stands we're looking at either accepting a pro-rated (to the amount of work we done for the customer) contractual redundancy package funded by the customer, which they'll sweeten by also offering to pay full notice pay, or as of the end of the month, our employment stops with no notice or redundancy pay, and everything ends up in court.

grungebob

I’ve part managed 3 TUPE changes in my old job and have just completed the TUPE process for myself moving to my new job. 

If the majority of your time was/is spent doing tasks at this one location and the services will continue with another provider you have a good shout for TUPE to be applicable. 

And just to correct a comment above( although I now see it’s already been corrected), TUPE does not have a 12 month or any time frame for that matter attached to it post transfer. 

Your T&C’s are protected unless the new employer provides terms that are better or they can demonstrate a ETO reason for change. The ETO must be strong to survive a tribunal. 

Another positive example of TUPE is when I last transferred 15 years ago I had 5 more days holiday than anyone else in the company plus I was paid for my dinner breaks. So I had to be on site 8hrs so 8-4 with a 30 minute lunch break but everyone else had to work 8-4:30 with their unpaid breaks. 

m_c

Since I happened to notice this thread while searching for something else, I'll give an update.

8 working days before the contract ended, we were finally offered a Settlement Agreement, however only for a percentage of our contracted redundancy. The big argument being around notice periods and pay.
My then employer refused to contribute anything, as they argued it would undermine their stance on TUPE applying.
And the new supplier simply continued to reject that TUPE applied.

The union were quite honest about it not being what we were legally entitled to, but also explained the reality that if we rejected it, it would likely be 2 to 3 years before any legal avenues came to any kind of conclusion, and getting any money would depend on the two companies arguing over TUPE still existing.

So I accepted the SA, however the union have raised a group claim for failure to consult against the two companies involved, so somebody will have to decide whether TUPE should have applied, whether we should get the rest of the money we were contractually entitled to, and who should pay it.
The Union's lawyers estimate it will probably take a couple years though.