TUPE time scales

[Flugelhorn]

Hi - work for the NHS and we are being transferred at the beginning of March (approx 5 weeks) to a social enterprise - the planning has been going on for sometime - we had first meeting with current employers (after we nagged them) and then nothing until week when we have been given 7 days notice of a meeting re the proposed transfer ....

 

(actually this is the only contact we have had - 1 meeting in Nov and notice of this meeting....)

 

Quite a few of us can't make the meeting, it really is rather short notice and I wondered if anyone had thoughts on how long would be reasonable timescale for consultation over this.

 

our planned rotas are no longer available for us to see - we aren't sure what we will be doing in march.

 

the word TUPEd has disappeared out of letters from our employer.. however have dire memories of TUPE from 9 years ago

Edited February 1, 2013 by Flugelhorn

[Crocdoc]

This deos not give precise timescales, but it clearly outlines your rights to be represented.

A Tupe transfer is exactly what is stated on the tin, an employer cannot aviod responsibility simply by omitting the word from correspondence.

 

Employer's duty to consult and inform employees about a transfer

 

86 The transferor (former employer) must inform the transferee (new employer) of certain information before the transfer takes place. This is called the employer liability information. There is more information about this in the Department for Business, Enterprise and Regulatory Reform (BERR) guidance available on the BERR website at www.berr.gov.uk.

 

 

 

 

87 There is also a separate duty upon both former and new employers to consult and inform the affected employees - see next paragraph. If an employer intends to sell or otherwise transfer part or all of a business, both the former employer and the new employer must consult with either:-

• representatives of a recognised trade union, if there is one in the work place; or
  
• representatives of the employees who have been elected by the affected employees.
  

88 If there is no recognised trade union and there are no elected employees' representatives, the onus is on the employer to arrange for employees' representatives to be elected. If there are both elected employee representatives and representatives of a recognised trade union, the employer must consult the representatives of the trade union. The employer must tell the representatives:-

• that the transfer is to take place
  
• when the transfer is expected to take place
  
• the reasons for the transfer
  
• all measures to be taken in relation to the employees by the transferee and transferor. This would include any plans or proposals which would affect the employees.
  

89 The employers must ensure that all affected employees are consulted, including those on maternity leave or sick leave, or secondment. Failure to consult an employee on sick leave may mean the employee has a potential disability discrimination claim and failure to consult an employee on maternity leave may mean the employee has a potential sex discrimination claim.

90 If no representatives are elected within a reasonable time after the employer has invited affected employees to elect them, the employer must give each affected employee the same information about what the transfer plans are.

if an employer fails to consult or fails to give representatives full information, the representatives can complain to an employment tribunal and ask for compensation for all affected employees. The claim must be made to an employment tribunal within three months of the date of completion of the transfer. There is no requirement for the representatives or affected employees to raise a grievance in this situation before a claim can be made to a tribunal.

93 The maximum amount of compensation a tribunal can award is 13 weeks' pay for each employee. The EAT has ruled that the maximum should be awarded as the norm, unless there are mitigating circumstances justifying making a lower award (endnote 28). This is an important and valuable right for employees, and advisers must be careful to ensure that claims to the tribunal for a failure to consult are not missed. The regulations make it clear that both the former employer and the new employer are jointly and severally liable for these awards. Advisers should therefore normally consider naming both parties in any employment tribunal claim. It is not necessary to have to wait for the transfer to take place before the representative or employee can make an employment tribunal claim.

94 The compensation is notbased on the maximum amount of weekly pay which applies to tribunal awards but on the employee’s actual week's pay. Neither is the award based on any loss. The award is intended to be punitive and to act as a deterrent to employers to stop them failing to consult with employees. The employment tribunal can award maximum compensation even if consultation would have made no difference. The employee does not have to show that s/he has lost out financially for a claim for maximum compensation to succeed

 

Once the transfer has taken place, the employee should be given an up-to-date written statement of employment. This should give the name of the new employer and confirm that the employee's terms and conditions of employment have not changed. The employee may also receive a P45. This does not mean that s/he is out of a job, but just that her/his tax records are being updated

Edited February 1, 2013 by Crocdoc

[Flugelhorn]

thanks Crocdoc - really feel we have not been adequately consulted, though suspect we will not get far on a complaint about it. Must have sent dozens of e-mails (and our union reps have too) but so little info back.

 

HR are still calling it a proposed transfer!!

 

When dust settles might ask my rep if he thinks there has been enough consultation

[Crocdoc]

Good luck, if you need further information don't hesitate to ask and I will read it up.