TUPE: are redundancy terms part of the transfered T&C

Monfreid

Hello,
Let's say that I am working for company A and I am going to TUPE to company B in 6 weeks. We've been told that our T&C will be transfered (years of service, salary, ...). I was wondering if the redundancy terms are also transfered? My current company offers a good package for redundancy but we are not sure for the new one (statutory only?). If I'm made redundant within the next 12 months or even after that, which redundancy terms will apply (company A or company B?)  thank you

Mr. Incognito

No they wont

EDIT- It appears they will

Monfreid

Thanks for your answer
that's a bit of a worry ... not knowing the redundancy terms in company B ... I am in company A for 13 years and the redundancy terms are 2+5 ... if Company B only offers statutory redundancy then I will "loose" 5*13=65 weeks of redundancy payment ... and there is a good chance that redundancy will come in 12 months time ...

Mrs OBumble

Mr. Incognito wrote: »

No they wont

So what other t&c are not covered by the TUPE laws?

CIARAN_BOYLE

Are redundancy terms written into your contract? If not they are never guaranteed so don't transfer. If its written into your contract as a term of employment (which is rare) it does transfer afaik.

Victor

CIARAN_BOYLE wrote: »

so don't transfer.

That may not be an option.

CIARAN_BOYLE

Victor wrote: »

That may not be an option.

I mean that if the benefits are not in the contract they won't transfer.

If the benefits are in the contract they do transfer.

Peregrinus

Typically redundancy terms are not written in to the contract of employment, and they can vary from time to time. Employers offer attractive redundancy terms when they want to encourage or facilitate resignation; they offer less attractive terms, or nothing above statutory, when they are trying to retain staff. Or when they can't afford the more generous terms.

Even if the enterprise in which you are employed isn't transferred to a new employer, you could lose the attractive redundancy terms in the next 12 months anyway; your current employer could simply withdraw them.

GrumpyMe

Peregrinus wrote: »

Typically redundancy terms are not written in to the contract of employment, and they can vary from time to time. Employers offer attractive redundancy terms when they want to encourage or facilitate resignation...

To qualify for redundancy an employee must be dismissed - if an employee resigns redundancy payments are NOT available to him/her.

Peregrinus

Fair enough. Perhaps what I should have said is that if employers are looking for people to volunteer for redundancy they'll offer generous terms, but if they are trying to retain staff they won't.

The point is, redundancy terms are rarely a permanent contractual obligation. Subject to the statutory minima, it's a matter of policy for the employer as to what redundancy terms it offers from time to time. Therefore, transfer of undertaking or no transfer of undertaking, the terms which are available today may not be available next month or next year.

Manach

I had heard, discussion on the topic, of a friend's work colleague who his firm wished to retain through a series of layoffs had got an explicit written confirmation of his own redundancy terms. This was given in the case he ever was allowed to take redundancy. Presumably this type of formal undertaking would survive a TUPE transition.

Peregrinus

Manach wrote: »

I had heard, discussion on the topic, of a friend's work colleague who his firm wished to retain through a series of layoffs had got an explicit written confirmation of his own redundancy terms. This was given in the case he ever was allowed to take redundancy. Presumably this type of formal undertaking would survive a TUPE transition.

Yes. Whatever rights that confirmation gave him against his old employer would transfer to, and be enforceable against, his new employer. Obviously, you'd need to read exactly what was given to him in order to know how cast-iron it was, or in what circumstances it might allow the employer any kind of out.

Monfreid

thank you all for your feedback, 
When you TUPE, you cannot ask for redundancy because your job still exists, you are "just" transfering to a new employer
Let's hope that company B will have a decent redundancy package because, I already know that my current position will be terminated in 12 months so if they can't offer me something else within the company at that time then I'll face redundancy ... :-(

barman linen

Monfreid wrote: »

thank you all for your feedback,
When you TUPE, you cannot ask for redundancy because your job still exists, you are "just" transfering to a new employer
Let's hope that company B will have a decent redundancy package because, I already know that my current position will be terminated in 12 months so if they can't offer me something else within the company at that time then I'll face redundancy ... :-(

You do have the option not to transfer as far as I know - but then if you stay your role is most likely redundant and you could only be offered statutory - even if the current policy is the generous package you describe above.

As stated above the generous terms can be withdrawn at any time by your current employer.

Mr. Incognito

So what other t&c are not covered by the TUPE laws?

I've considered this and it appears I may have been wrong.

http://www.irishstatutebook.ie/eli/2003/si/131/made/en/print

Rights and obligations.


4. (1) The transferor's rights and obligations arising from a contract of employment existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.

http://www.williamfry.com/newsandinsights/news-article/2012/09/14/employee_rights_on_business_transfers

erms and Conditions of Employment must be preserved

The Regulations provide that the new owner of the business must honour an employee’s existing terms and conditions of employment. They specify that where an agreement provides for a less favourable term or condition, it will automatically be deemed to be modified so as not to be less favourable. This is so even where an employee consents to the less favourable term. A provision which is more favourable to an employee, however, is permissible.

It is not possible for parties to a transaction to contract out of the Regulations. Any provision in an agreement which purports to exclude or limit the application of the Regulations is deemed to be void.

If an employee terminates his employment because a transfer has involved a substantial change in working conditions to the detriment of that employee, the employer concerned is regarded as having been responsible for the termination – it is treated as a dismissal.

Pat Mustard

Monfreid wrote: »

Let's hope that company B will have a decent redundancy package because, I already know that my current position will be terminated in 12 months so if they can't offer me something else within the company at that time then I'll face redundancy ... :-(

Mod:

The above details indicate that this is a real life scenario.

Therefore, this is a request for legal advice rather than a hypothetical discussion.

Thread closed for breach of forum charter.