Bit confused

[shuggler]

Hope someone can help with this please.

 

Why would a company that has a full order book, starting new people on a weekly basis, and free of any debt to the banks etc,

put some existing employee's on a tupe list

 

and

 

is it normal practice for this to happen, and is it legal.

 

This has happened to me before, but that company had been bought over by a larger group, which is not the case here.

 

Any views on this welcome thanks.

[Emmzzi]

if they are ooutsourcing some work, yes - and that is a common way of handling expansion

[shuggler]

They have contract work from the company they are wanting to tupe us over to,

this other company now want to take this work on themselves and our company want to tupe us over to them,

 

although our company need people to do this type of work which is why they are taking on more people by the week.

 

I cant understand why they would tupe the very people they need over to them,

and start new people,

unless they want to get rid of the ones they don't want for some reason??

Thanks for replying Emmzzi

[Emmzzi]

let me repeat this so I have it clear!

 

You do a job - let us say widget making

 

The company currently makes widgets themselves, and buys in some widgets from company B

 

The comapny is growing and decides it would like to buy more widgets from comapny B and make less themselves, so it can concentrate on something else (making grommits, for example).It still makes some widgets itself from time to time, but uses agency staff as and when there's a rush on.

 

The workers move to company B to make widgets

 

Is that right?

[shuggler]

Sorry Emmzzi will try to explain better,

 

I work for company A

company B do similar work

but they are two separate companies,

 

B then ask A if they can do some work for them

A supplies work force of say 14 workers but still on company A payroll,

 

Now company B decide they want to do all the work,

and company A want to tupe the workforce over to B.

 

That's what i cant understand

if A need the same people why would they want to tupe,

and this is nothing to do with agency workers.

 

Hope this explains a bit better

[Emmzzi]

ah, ok!

 

Well, if the work moves, the workers move with it. That i what TUPE is all about.

 

You keep your terms and conditions and length of service, so dont lose out. If the steady work is in company B, that is where I would want to be.

[shuggler]

Hear what you are saying, BUT,

A, have the big fat order book and are debt free,

 

B are a bit of a risk as they are not so sure of the future,

and the ones they want to tupe are all employed by A.

 

But I thought you could only be tupe'd over if the company you work for being A were in some sort of trouble and were trying to keep the workforce in employment??

 

just cant understand why they want to tupe experienced people and start new ones,

unless they have some other plans in mind.

[Emmzzi]

No, if the work moves, the employees move with it, that is the basic principle. Nothing to do with any companies being in trouble.

 

Have you expressed your preference to stay to your employer though? No harm having a discussion.

[Emmzzi]

from acas on when TUPE applies

 

http://www.acas.org.uk/index.aspx?articleid=1655

 

a contract to provide goods or services is transferred in circumstances which amount to the transfer of a business or undertaking to a new employer.

 

I would guess his is what is happening?

[Sidewinder]

The law says that is the undertaking changes - so if the service or manufacture changes - the staff responsible for that process must go with the undertaking (or at least be considered based on whether their role is substantially involved with the process that is moving).

 

The fact that Company A has a full order book and is in a better financial position than Company B is of no consequence.

 

I have lost some really good staff in the past under TUPE purely because we had seconded them to a role within our business for work we were doing for another company - when that company decided they wanted the function back in-house, our staff had to move across with the transfer of the work. Had it happen the other way too - we had a company doing some work for us and decided to do it ourselves as the person carrying out that function on the other company's behalf was not very good. We took the work back, but also inherited the member of their staff that was causing the problem!

 

It might seem a strange concept to grasp, but the principle is that it doesn't matter how good (or bad) you are at the job you do, or how successful (or otherwise) the company you currently work for is - if you are substantially involved in a process or function (an undertaking) which is removed from the company you work for and which becomes the responsibility of another business, then in most circumstances you go along with the process. You might not like it, but that is the way that it works.

 

You can also look at it another way and say that if Company B was a 'better' employer with better career prospects or benefits, then it might be more attractive to move, and to be denied the opportunity to transfer would be unfair or potentially discriminatory. The system of TUPE does not allow you to have it both ways unfortunately.

[shuggler]

Thanks for the explanation folks I can see now the reasons why, ok will have to see how things go, thank you very much for taking the time to reply.

[shuggler]

Sorry to bring this up again

but something about this TUPE deal seems a bit dodgy to me,

 

the company i work for being A have confirmed that two employees are to be transferred over because they cant find work within the company for them,

BUT they have hired employees from another company to handle the workload they have and also have about four different sub contractors doing work that the two existing employees could do.

 

This seems to me that they want shot of the ones they don't want,

if they really wanted to keep the two people they could get rid of the ones hired in or let the sub contractors go

which would then open up places for the two to be Tuped over.

 

Are they in breach of the TUPE terms??

can they take on other people when they have this tupe thing ongoing.

[Emmzzi]

yes, once again, the workers go where the work is going.

[shuggler]

Still find this suspicious

as out of 14 personnel involved in this project only TWO ARE PICKED to be transferred,

 

so how was this decided,

at the start of this they said we had the choice to either TUPE over OR stay with the present employer,

 

now it seems this decision has been made for the the two employees without any consultation.

 

I know you say that the workers go where the work is going so why was it that only two are to go, just doesn't seem right.

[mariefab]

Are you saying that 14 of A's employees work on B's project; but not exclusively, they all also do a reasonable amount of other work for A?

 

If so, TUPE probably wouldn't apply because there needs to be an 'organised grouping of employees ... which has as its principal purpose the carrying out of the activities concerned on behalf of the client'. (B in this case)

 

http://www.legislation.gov.uk/uksi/2006/246/regulation/3/made

[Emmzzi]

I asked if you had a discussion with your employer expressing a preference to stay, some time ago.

 

did you? Shy bairns get nowt.

[shuggler]

yes that's correct Mariefab we also do work on other contracts not just this one, although its been mostly this contract for part of this year with some other contracts in between.I did not ask to stay Emmzzi as its pretty obvious they want us out.I just want to be sure that the way they are going about it is legal.

[Emmzzi]

Well, if you aren't prepared to challenge, this is probably all just talk...?

[shuggler]

Would you care to explain your last comment Emmzzi ??? lost me with that one

[Emmzzi]

If you can't manage a conversation saying "I want to stay", how would you manage one saying "I think you are acting illegally"? All the legal knowledge in the world is for nowt if you won't act on it.

 

If you want to stay, tell them, and see what they say.

[shuggler]

Think YOU are missing the point here i dont want to stay, but i do want to be sure that the way they are conducting this TUPE is all above board, but if all you can offer in the way help is by snide comments then PLEASE dont bother.

[Emmzzi]

What is your plan if it is not legal?

 

ETA: I ask because it is possible an appeal would get you put back to the original employer. Which would seem to not be what you want.

[mariefab]

I missed the point too. I assumed that you were concerned that you may be unlawfully transferred to B, a less secure employer.

 

What is B's position?

Do they believe that TUPE applies and want to accept the 2 employees?

 

If both employers are treating this as a TUPE situation there should be consultation with the affected employees before the transfer.

I'd be concerned that continuity of service and terms of employment wouldn't be protected.

[shuggler]

At this point we have still to go for a consultation so don't know what is being offered,but there are a few things that we need to look at, original contract has changed in terms of rate of pay & conditions etc,also your terms and conditions remain the same for a year then you may be offered a new contract or you could be laid off? does this apply or is it down to the employers decision,

[Emmzzi]

They'd need a good reason to change your contract in a year, not just harmonisation with other staff..

 

I strongly suggest joining a union.