Re: carvell : Fri Feb 07, 2014 10:10 pm  

How melodramatic.

Its actually just to give the employee the option not to be transferred. For any reason he sees fit. As has already been explained at length, by people who DO know things, he simply declines the TUPE transfer, on or before the transfer takes place, and is simply treated as having resigned.

Of course, that would mean, in an insolvency situation, any employment claims he might have will be against the old company.

Might also be worth mentioning that the TUPE requirements are relaxed somewhat where the transferring business is insolvent. This to encourage transferee businesses to take on (more) staff from the former. Picked this up from a major legal firm's website (Pinsent Masons) since far better summarised that I could attempt:

Finally, TUPE is relaxed to protect incoming employers where the exiting employer is insolvent. The liability for redundancy, notice and some other payments to employees will not transfer to the incoming employer. Also, if it is agreed with the trade union or employee representatives, terms and conditions of employment can be changed (without an ETO) if the change is designed to save a failing business. The idea is that companies will be more inclined to "rescue" insolvent businesses, thereby safeguarding employment, where the inherited liabilities are not so onerous.

Of course, that provides more reasons for employees not to avail themselves of the TUPE, depending on if the new employer takes advantage of any or all of those relaxations.

Re: carvell : Fri Feb 07, 2014 10:12 pm  

Adeybull wrote: Just so you know, you are wrong. Really "NOTE: If you decide to dismiss and offer re-engagement on the new terms to 20 or more employees then there is a legal obligation for you to collectively consult with any recognised trade unions or workforce representatives. The penalty for failing to collectively consult could be a Protective Award for all affected employees up to a maximum of 90 days pay" Taken from HERE

Adeybull wrote: Just so you know, you are wrong. Really "NOTE: If you decide to dismiss and offer re-engagement on the new terms to 20 or more employees then there is a legal obligation for you to collectively consult with any recognised trade unions or workforce representatives. The penalty for failing to collectively consult could be a Protective Award for all affected employees up to a maximum of 90 days pay" Taken from HERE

Re: carvell : Fri Feb 07, 2014 10:15 pm  

Nope. You are still wrong.

Re: carvell : Fri Feb 07, 2014 10:16 pm  

Adeybull wrote:

Nope. You are still wrong.

Edited

Re: carvell : Fri Feb 07, 2014 10:19 pm  

And hoist by your own petard.

Funnily enough, I was already familiar with that rule you quoted.

As you can clearly see from the wording, it refers to the PENALTY for failure to properly consult. NOT the notice period for consultation.

There is no defined period for consultation in the legislation.

Just so you know.

Re: carvell : Fri Feb 07, 2014 10:22 pm  

There is and you know there is

Re: carvell : Fri Feb 07, 2014 10:28 pm  

Really?

I guess one of our top legal firms must have got it wrong then, when on the same website I referred to above, it stated:

What do you need to do to comply with TUPE?

(1) Outgoing employer must inform and consult with staff

Employers involved in a business transfer must inform appropriate representatives of the affected employees of the transfer and any measures proposed, and must consult on any proposed measures. Certain specified information must be provided to the representatives long enough before the transfer to enable the outgoing employer to consult with them about it.

If there are any changes or proposals for changes following the transfer, these "measures" will have to be discussed with the representatives of the affected employees The incoming employer is required to provide the outgoing employer with information on proposed measures to allow the outgoing employer to comply with its duty to inform and consult. There is no set timetable for consultation, but the larger the transaction and the more staff affected, the longer the timetable will need to be.

If there is a failure to inform and consult, a complaint can be made to the Employment Tribunal. If successful, the Tribunal can award whatever compensation it considers just and equitable having regard to the seriousness of the employer's failure up to a maximum of 13 weeks' pay per affected employee. Information and consultation failures can result in joint and several liability between the outgoing and incoming employers, although the contract governing the transfer can cater for apportionment of liability here.

Re: carvell : Fri Feb 07, 2014 10:29 pm  

You are aware of the TUPE changes implemented on 31/01/14 aren't you

Re: carvell : Fri Feb 07, 2014 10:30 pm  

and on that note I will bid you goodnight

Re: carvell : Fri Feb 07, 2014 10:34 pm  

financialtimes wrote:

There is and you know there is

You are wrong and Adey is right.
Simply look at Regulation 4 and the various clauses. I suspect that your newspaper of choice may have a link but if not try the website for HM Court and Tribunal service.
It is somewhat sad that a forum devoted to the greatest game should become a discussion board for obscure legal wranglings. But I suppose I should plead guilty m'lud.