Redundancy from Contractor

[lisaclaim]

Hello. In brief... hubby started working full time with a company in 2007 as a FLT driver. In 2010, hubby and one other FLT driver and some wagon drivers were moved over to a logistics contractor full time although still working at same company that took them on. They didnt have a choice and were told nothing would change. 2 weeks ago they were told possibly made redundant as the company they were working at were cutting costs and that they would now be doing the work my hubby and others do. He got told the other day that definite redundancy. We are dealing with it and looking for other work but wondered about legalities / fairness because the company has a few of their own FLT drivers that will be taking on the work that have been there a lot less time than hubby and if they hadnt have contracted him out he would still have a job.

 

Any advice would be much appreciated

 

Thanks

[SNALF]

Hi Lisa, they need to pool correctly otherwise he could claim unfair dismissal under redundancy. If he and the others who went to the contractor are all at risk, then everyone who works for the employer (not the contractor) in the same role are also at risk and the pool should include them all. The staff belonging to the contractor will not be pooled but everyone back at your hubby's employers should be. They will be expected to let any FTC (fixed term contract) staff or agency staff go first. After that, it doesn't have to be a last in first out selection. They can use whatever selection they wish as long as it's fair, indiscriminate and consistently applied. Keep us updated on whether the others are at risk too for further advice.

[Emmzzi]

can I check - work moved over to contractor - hubby TUPEd over?

 

Now the original company are insourcing again, is that right?

 

In which case I'd say he probably TUPEs back with the work, and original employer make the redundancies afterwards from the new pool

[Batfink]

Following on from Emmzzi's questions/comments above - did all the FLT/wagon drivers move to the contractor company or just some of them? Did the original company employ any FLT drivers direct at any point since your hubby was outsourced?

[lisaclaim]

Hello

 

Apologies for the late reply to your questions and replies.

 

I have a little more information.

 

My hubby was TUPE'd in 2010 and in the last week it seems like something is going on but we do not know what. Basically they are saying that the work my hubby does will now be done in-house.

 

After investigating a little further and speaking to a HR business partner at my job, I have emailed the HR department with the following:

 

1. Isn't this a reversal of TUPE ?

2. What is the selection criteria used for hubby's redundancy ?

3. Is my husband been dismissed based on a transfer ?

 

... please add any additional comments or if we are on the right track here.

 

He was told by a member of staff last week that he would not be able to apply for a job at the company (if one came up) but no reason, just that it is complicated !!

 

Thanks

Lisa

Edited July 11, 2013 by lisaclaim
put company name in so took out

[Emmzzi]

You are on the right tracks. I would more explicitly ask, since the work is being insourced, will Hubs TUPE back in with the work?

 

I hope it is your husband emailing since of course they do not have to discuss this with you at all.

[lisaclaim]

Hello

 

New update... I spoke with the HR person of the company that my hubby was TUPEd out to. She replied to the email I sent stating that if I would like to discuss further then to ring her. In the email she also stated the following:

 

"To re-confirm, TUPE did not apply in this situation given that [company hubby working at] will be taking the yard operation in-house and running it differently using their existing workforce".

 

When I spoke with her on the phone she said the same. That TUPE applied in 2010 when the transfer took place but it does not apply now. I am really confused.

 

Any advice would be much appreciated.

Thank you

[lisaclaim]

apologies forgot to add that she kept talking about the company my hubby working at as 'their customer' as if they did not want to upset them as they have other employees of theirs on site

[Emmzzi]

union help? I think it'd be fair to ask for detail of how the work will be covered to ascertain it will be a dufferent job

[lisaclaim]

Hello

 

thank you for the response... would you have any one liners or sample text I could use to send to the company to request how the work will be covered. They have not divulged obviously to the company my hubby works for, what work will be done, just that they will be taking over, running it differently with their workforce!!! he was their 'bloody' workforce before they TUPE'd him out and has been there longer than the majority on site! anyway sorry this is a big moral thing for me and I know a lot of these businesses do not have morals or principals, but I do.

 

Thanks

[Emmzzi]

Send to both firms.

 

"As you will be aware (name) transferred with the work from company A to Company B on (date.)

 

On this occasion you are stating TUPE will not apply and the work will be handled differently. As all of the work will be handled in house this seems unclear to me, and I would be obliged if you could provide a full breakdown of how the work will be covered and therefore why you feel TUPE does not apply.

 

I look forward to your response within 7 days, to inform my decision to proceed/ not proceed with an ET claim."

 

By the end of the month you will need to pay for ET claims, so I suggest getting hold of the paperwork now and starting to fill it in - if in doubt and they use delaying tactics lodge it anyway, you can always withdraw later.