In many cases it will be obvious that you are assigned, and working in the business or undertaking which is transferring. This is particularly so if the whole business or undertaking is being transferred. Problems occur where part of a business or undertaking is transferring. Whether you are assigned to the part transferring will involve consideration of a number of factors, including:. You may not want to transfer and work for the incoming employer.
If so you have the right to object. You must tell either the outgoing or incoming employer before the transfer takes place that you wish to object. By objecting your employment will not transfer to the incoming employer; nor will you remain employed by the outgoing employer. Your employment will automatically come to an end on the date of the transfer.
Importantly, if you object and your employment comes to an end you will be considered as not having been dismissed. This means that you could not bring a claim for unfair dismissal! There are some advantages. Your employment automatically ends on the transfer date. This means that you may not have to work your notice period. Also, as your contract of employment does not transfer to the incoming employer, they cannot enforce any restrictions, including restrictive covenants, on what you cannot do after your employment has ended.
You may also have the option of resigning your employment for one or more reasons relating to the transfer. This may be your preferred option because you can bring a claim for unfair dismissal. If your employment transfers, the rights, powers, duties and liabilities of your outgoing employer connected with your employment automatically pass to the incoming employer along with any acts or omissions, which are treated as having been done by the incoming employer.
This is known as the automatic transfer principle. Securing the best possible outcome combined with how we look after you are fundamentally important to us at Quantrills. We provide a truly personal service, blending our legal expertise with the best client care. Becoming our client is a straightforward process. However, before choosing Quantrills as your employment law solicitors you and us will want to be completely sure we are the right people to help you achieve your objectives.
Having looked at our web site, if you like our approach and would like to discuss how we can help you, getting started is easy. Read more You are now a client of Quantrills and we can start work on your instructions and give you our advice. At Quantrills we are flexible in how we work with you and how we progress your case We welcome calls from our clients. Only employees on permanent or fixed term contracts are liable for TUPE transfer.
Agency workers are not. If you happen to have employees who are temporarily assigned to work in a different office or department within the business or for another organisation, this can complicate the situation. It noted that it is not a question of looking at which employees spent all or most of their time but rather deciding to which part of their employing organisation, they are assigned.
The applicability of this test was recently noted in the Employment Appeal Tribunal decision of London Borough of Hillingdon v Gormanley 19 December The application of a percentage is commonplace and has been for a number of years. The percentage levels commonly used, also seem to have declined over the years.
Crucially though, the test of assignment has to be met. Michael has spent 30 years based in the City of London, advising a wide range of clients on all aspects of employment law. He has an extensive knowledge of the employment issues arising on business transfers. If you need further guidance on any issues related to TUPE, contact our employment law solicitors. Did you find this article informative? Would you like to receive more, or just leave us some feedback and suggestions?
Michael Ryley Partner. This article relates to: Employment, pensions and immigration Employment tribunal litigation Education. This article looks at 2 specific issues in the world of TUPE transfers. Some New Employers consider dismissing and then re-engaging on new terms though this is often a risky strategy and where it has been perceived necessary, is often accompanied by a Settlement Agreement click here for a more detailed discussion on such Agreements resolving the potential for a claim.
This is not so for public sector Employees but TUPE has accounted for this by, in these narrow circumstances, making both Old and New Employer responsible for such a claim. There are some limited exceptions to the rule that liabilities generally transfer but those are too detailed for discussion here. There are special rules about payments due from an insolvent Old Employer to an Employee. In those instances, most payments due such as statutory redundancy pay, pay in lieu of notice, holiday pay and back pay become debts owed and the Employee can claim the same from the National Insurance fund rather than from a subsequent employer in a pre-pack administration.
Equally, there are special rules about varying terms in insolvency situations, permitted variations are possible where the Old and New Employer agrees the amendments with Employee Representatives. Dismissals for reasons related to the transfer, before or after it, are automatically unfair unless the New Employer can justify the dismissal because of an Economic Technical or Organisational ETO reason and it has otherwise followed a fair procedure.
Whatever the New Employer suggests is their ETO reason, it must be the principal or sole reason for the dismissal and it must entail a substantial change in the workforce. There is no rule for when the transfer can stop being the reason for the dismissal — in one case a dismissal 2 years after transfer was deemed to still be by reason of the transfer. In practice, this is fairly rare and of course the longer ago the transfer, the harder to prove the dismissal was not for another potentially fair reason in which case the discussion on unfair dismissal applies.
It is possible for an Employee, separate to the right to resign without notice and claim constructive dismissal in relation to breach of contract by its Employer, to treat themselves as being dismissed where a transfer leads to a significant change in working conditions, in that instance an Employee is entitled to claim unfair dismissal and treated as dismissed on notice. TUPE Regulations require both New and Old Employers to inform and consult with their Employees and, where appropriate, Employee Representatives about the transfer and what might happen to the staff.
The Old Employer is also obliged to provide certain information to the New Employer about the Employees being transferred. Failure to inform or consult can lead to claims for damages in the Employment Tribunal, though the effect of such failure is not to prevent the transfer.
0コメント