TUPE ADVICE FOR EMPLOYEES TRANSFERRING EMPLOYMENT FROM ONE CONTRACTOR TO ANOTHER

TUPE

(Transfer of Undertaking Protection of Employment)

TUPE regulations apply when a company is sold, activities are outsourced, brought in-house, transferred or a contract for services is moved from one provider to another.

Effectively, WINNS Services will be stepping into the shoes of your old employer. It will be as if your contract of employment was always made with WINNS.

RIGHTS FOR TUPE EMPLOYEE TRANSFERS

Where an employee transfers under the TUPE regulations, the following rights and obligations, powers and liabilities also transfer with them to the incoming employer:

Contracts of employment, including all terms and conditions of employment, such as pay, commission and bonus entitlements, holiday entitlement, job title and function, pension % and sick pay provisions.
The employer’s contractual provisions such as job or workplace flexibility or mobility, restrictive covenants, or restrictions on outside work where this applies.
Continuity of service
Accrued entitlements such as where a bonus or holiday entitlement has built up over a period of time but has yet to be taken or paid.

RIGHTS FOR TUPE EMPLOYEES WHO DO NOT WISH TO TRANSFER

You should talk to your employer if you’re not sure whether you’re transferring. To talk through your situation, you can also call the Acas helpline https://www.acas.org.uk/contact.

We are obliged to formally consult with all affected employees throughout the process to understand how the employee is feeling, but all employees have the right to object to a transfer of their employment. If you do so your employment with the transferor (old employer) is treated as terminated by law with effect from the transfer date and there is deemed to be NO dismissal.

In very general terms, an employee who refuses to transfer is effectively resigning and you would follow your normal leaving protocol, work your notice period and be paid any outstanding accrued holiday not taken for the year.

REDUNDANCY

After an employee transfers, we can only make redundancies related to the transfer if there are both:

a genuine redundancy situation
a need to make changes to the workforce for economic, technical or organisational (ETO) reasons

For example, an ETO reason could be:

a change in the location of work
a reduction in the number of employees
too many employees transferred in for the same role

If we need to make redundancies in an employee's role or team, transferred staff will be treated in the same way as staff who’ve worked there longer.

IF YOU HAVE NOT BEEN TOLD ABOUT TUPE TRANSFER

If you have not been told about a TUPE transfer or given the name of the new employer, your employer has breached TUPE regulations. You may be able to claim an employment tribunal. https://www.acas.org.uk/making-a-claim-to-an-employment-tribunal

If you decide to make a claim, it should be as soon as you find out about the transfer. Employment tribunals may allow objections after the transfer to be heard.

OUR TUPE PROCESS

BEFORE THE PROCESS:

1. Meet and introduce ourselves to all employees
2. Send out Application Forms, this covers your personal details, address, health issues, bank details etc
3. Request proof of Address and ID documents as if you were a new employee although your continuity of service will stay the same
4. Request a copy of your old contract
5. Request evidence/proof of any additional employment terms that differ from ours
6. Answer any questions you may have before the contract is taken over

AFTER THE PROCESS:

1. Welcome all new employees and introduce the Account Managers
2. Redundancies (if applicable) will happen
3. ID Badge and Uniform will be given to you
4. Induction and health and safety training will be provided

Q&A

WHAT IS A TUPE TRANSFER?

This is where either part or all of an organisation’s process and staff are transferred over to a new employer.

WHAT HAPPENS TO MY TERMS & CONDITIONS?

Under TUPE regulations you will maintain the terms and conditions you currently have unless the terms and conditions of the new employer are more favourable, in which case you can elect to be employed under their terms and conditions.

HOW MUCH NOTICE AM I ENTITLED TO?

The organisation needs to give you 45 days' notice. However, some organisations will give more than this to enable employees to ask questions and attend meetings.

CAN I BE DISMISSED BECAUSE OF THE TRANSFER?

No, you cannot be dismissed as you are protected under TUPE rules. Any dismissal that is connected to the transfer would be automatically treated as “unfair”. (See Redundancy)

CAN I BE MADE REDUNDANT BECAUSE OF THE TRANSFER?

Yes, you can be made redundant and new changes to TUPE law have made it possible for you to be made redundant before the handover.

WHAT HAPPENS IF I DON'T WANT TO TRANSFER TO THE NEW BUSINESS?

You can seek other jobs outside your employment or with your new company but we cannot guarantee the ability to offer another position. You can choose not to join the new provider, and if you do so you will be effectively resigning from your position and will not be eligible for a redundancy payment.

WHAT HAPPENS TO MY PENSION?

All pensions accrued under the former employer are protected. In some cases, the new employer will continue to contribute to this scheme. Future pension rights after the date of transfer are excluded from the TUPE Regulations.

WHAT HAPPENS TO MY PERSONAL FILE?

This folder will be transferred with you to your new employer. It is advisable, therefore, to ask to see your personal file to ensure that there is no information retained that is spent. This information has to be provided to the new employer 28 days before the transfer.

WHAT HAPPENS TO MY PAY?

Your payroll details will be transferred to the new employer, and you will be advised of the payment date, if this is different to your current pay date then you should not suffer any detriment. Example: If you are currently paid on the 28 of the month and your new payment date will be the 10th of the month, you will not suffer any detriment, however, if you are currently paid on the 10th of the month and your pay date is changed to the 28 of the month you will suffer detriment and part of the consultation period will ensure that a payment is made to cover this period initially.

DO THE STAFF IN THE NEW ORGANISATION KNOW ABOUT THE TRANSFER?

Yes, the new organisation must consult its current workforce about the transfer.

CAN THE NEW ORGANISATION CHANGE MY TERMS AND CONDITIONS AFTER ONE YEAR SAY?

No, currently your terms and conditions are protected. They can be renegotiated after one year provided that overall the contract is no less favourable to the employee.

I AM OFF SICK, WHAT WILL THIS MEAN FOR ME?

We would have been given the information that you are off sick. You will be invited to a meeting to discuss the transfer and we will look to support you back to work if you have not returned by the date of transfer.

I AM PREGNANT/ON MATERNITY LEAVE, WHAT WILL THIS MEAN FOR ME?

The transfer will not affect your maternity pay and benefits. You will be invited to meet with us and we will confirm maternity leave dates and your role when you return.

TUPE ADVICE FOR EMPLOYEES