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TRANSFER OF UNDERTAKINGS (TUPE)



What it means?

If the business you work for changes hands, your terms and conditions are protected. Under the Transfer of Undertakings (Protection of Employment) Regulations (known as 'TUPE'). the existing terms and conditions of your contract of employment will transfer automatically to your new employer. This means that you will normally carry on working for the new employer as before.

If the new employer refuses to meet the terms of your contract, this will amount to a breach of contract.

How your other employment rights are protected - other employment rights as well as your terms and conditions are protected. These include any holiday you've built up and any outstanding claims you've made against the original employer (eg under discrimination laws).

If you don't want to work for the new employer - you can refuse to work for the new employer. You must let your current or prospective employer know that you object to the transfer. You'll be regarded as having resigned and will have no right to claim unfair dismissal or to a redundancy payment.

What if you're employed by a contractor? - If you're employed by a contractor (eg in catering or cleaning) who loses a contract to another contractor, you should, unless you'r e told otherwise, turn up for work as usual. You and your contract of employment will usually transfer automatically to the successful contractor.

If you find there's no job for you, you can consider making a claim for unfair dismissal against both employers in an Employment Tribunal. You may also have a claim for failure to consult before a TUPE transfer.

Rights to consultation - Your employer must consult the representatives of the workforce about the transfer. This will either be with trade union officials (if you have a union) or employee representatives who are usually elected by the workforce.

You must be told:

-when and why a transfer of business is happening;
-what the impact on employees will be;
-whether any measures like reorganisation will be taken, and how they'll affect you.

The information must be given in good time and the consultation must be carried out with the aim of coming to an agreement. If any reorganisation is planned, your representative can put forward your views. Your employer must reply to these and say why if they reject them.

Your representative can complain to an Employment Tribunal if the employer fails to inform and consult. The complaint should succeed unless there were exceptional circumstances preventing your employer from informing and consulting (for example, events outside their control).

If you are dismissed in connection with the transfer, this is automatically unfair unless there's what is known as an 'economic, technical or organisational (ETO)' reason involving changes (ie in numbers or roles) in the workforce. Redundancy is an example of an ' ETO' reason.

After the transfer, your new employer may want to cut the number of employees. If you're selected to leave, or if you're dismissed for an economic or technical reason, you may have the right to a redundancy payment.

Pensions

Your occupational (company) pension rights earned up to the time of any transfer are protected by law. If your old employer offered you access to an occupational pension scheme immediately before the transfer then your new employer must offer access to either:
-an occupational pension scheme which must meet certain conditions
or
-a stakeholder pension scheme where as a minimum the new employer matches employee contributions up to 6 per cent of pensionable earnings. If the scheme is defined contribution then your new employer must match employee contributions up to 6 per cent of pensionable pay.

Once the transfer has taken place, make sure you're given an up-to-date written statement of employment. This should give the name of your new employer and say that your terms and conditions haven't changed. Don't be alarmed if you receive a P45 - this often just means your tax records are being updated, not that you're out of job.

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Our Offices:

Leeds: Phoenix House, 3 South Parade, Leeds, LS1 5QX

Harrogate: 41 East Parade, Harrogate, HG1 5LQ

York: 1 Peckitt Street, Clifford's Tower, York, YO1 9SF

Leeds: 0113 2431714

Harrogate: 01423 704070

York: 01904 642727


Email: mail@richardsonlaw.co.uk


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