TUPE/Constructive Dismissal

[bgqs]

My father works for a facilities management (FM) company who has a contract to provide maintenance services to a retailer.

 

The FM company in question lost the contract and it was awarded to another contractor effective from 1st October 2009.

 

On the 30th September, he received a verbal warning for over-running his allocated coffee break by 5 minutes.

 

The new FM company took over the contract on the morning of 1st October. My father was called into a meeting the same morning and was advised that the client had requested that he be removed from site following the incident on 30th September whilst the contract was in the hands of his original employer.

 

The new FM company actioned his removal from site and he has been on gardening leave since this date on full pay.

 

The new FM company have attempted to fulfill their TUPE obligations by suggesting alternative positions within the company however, to date, the positions put forward have not been within his geographical location nor have they been in keeping with his role.

 

It would seem that the new company are going to serve 4 weeks termination notice in the near future however, I would like to know whether there is a case here for unfair dismissal or whether it would be worth him handing in his notice to provide a foundation for a case of constructive dismissal.

 

Any advice would be gratefully appreciated.

 

Thanks

[BankFodder]

Sounhds like a redundancy to me. If they aren't able to find suitable alternative work on reasonably similar terms then they should make him redundant.

It seems to me that it woujld be worth waiting until the dismissal and then go for unfair dismissal on the basis of redundancy.

You need to get some specialist advice on this

[Ell-enn]

Hi there, constructive dismissal is notoriously difficult to prove and it would certainly be best to wait and see what their next move is.

 

How long has he worked for the company?

[bgqs]

Thanks...

 

@BF: I think that this is the way they are playing this one however, looking at the TUPE legislation, the onus is on the dismissing employer to prove that the termination of employment is not related to economic, technical or organisational restructure. My father and his colleague was "removed from site" for a poor reason however, it has since become common knowledge that these roles has not been replaced. Could this action not could be construed as an organisational restructure ?

 

@ Ell-Enn: He has worked for the originatal company for one year and hence, this term of employment satisifies the requirement for TUPE legislation to apply.

[BankFodder]

Yes, it is an organisational restructure. With only one year it is not worth talking about redundancy. I don't think that the TUPE failure in this inatnce is reasonable but as ELL-Enn say, CD is very difficult.

 

Wait until they sack him then put in for unfair dismissal. Don't expect loads of money out of it

[bgqs]

Superb....thanks Marc