Advice re EE being passed onto third party

slave1 · 13-09-2018 4:58pm #1

Hi all,

Asked this by a friend but honestly not sure at all.

Employer A has just decided to outsource a function of their company to Employer B.

Employee C (part time employee of employer A) just called in and told that Employer B will be their new employer and hopes to pay the same rate of payment and keep to Employee C contract with Employer A.
Nothing said about notice period, nothing said about continuity of employment, nothing said about current hours being kept, nothing about holiday balance etc.
Nothing in writing

Initial thoughts are that Employee C very confused and not happy to work for someone they have never met and simply don't know where they stand.

IMHO there's a redundancy here as ER A had decided to make the role redundant by outsourcing...

Appreciate any guidance...

amcalester · 13-09-2018 5:01pm

The role still exits though, just with a different company.

I would have thought TUPE would apply here though i.e. Employee C transfers across on existing terms.

slave1 · 13-09-2018 7:48pm

Thanks for reply, there was no consultation process, only told today, new employer from a different town, don't know of them, nothing in writing, lots of verbal "should", "hope" when it comes to terms of employment etc.
Employee C has a high enough holiday balance and also years of service so will phone Employer B tomorrow to ask the questions, Employer A has already washed hands of situation and passed Employee C details on without consent and the jist is you're no longer my employee, phone this number ....

Hoping for a smooth transition of like with like but at the same time want to be assertive in Employee C rights.

Questions for Employer B so far are....

Will you honour and pay for my carried over holiday balance?
Will you allow me to work the days that I'm used to?
Will you allow me to work the number of days a week I'm used to?
Will you allow continuity of service into your employment?
What are your rates of pay, basic/overtime/Sundays/Public Holidays?
Can you forward to me my contract with everything in writing?
Will you allow me to carry out my duties in the same location I've been working for all these years?

All the above, but in a friendly manner, as I've said Employee C has no idea who Employer B is, never heard of them.

The reason I mentioned redundancy is I've worked for plenty of firms who outsourced and redundancy was always an option if an employee was not getting like for like new employer contract and hence I was asked today by Employee C
Any further advice.

slave1 · 13-09-2018 7:53pm

Also, I'm not sure TUPE applies, no part of the business is transferring from one owner to another which is where I believe TUPE applies (but I could be wrong on this)

Misguided1 · 14-09-2018 1:44pm

Outsourcing a function to another employer is transferring part of your business to another employer - thus a TUPE is very likely to apply. In this case if the employee chooses not to transfer, they will effectively resign their position. The role is not redundant - it is transferring to another employer under a TUPE.

Sounds to me like the meeting was more of a heads up and that a more formal communication will follow. TUPE has very particular guidelines as to what information needs to be shared, when etc.

But what you have described is, imo, not a redundancy.

slave1 · 14-09-2018 1:54pm

Yeah, I'm thinking it's not a redundancy now.
Would like to think it was a heads up but it wasn't, no indication of what was happening before the meeting and at the of the meeting employee told you are effectively not my employee now, here's your new bosses phone number, phone him with any queries, I don't know your rate of pay, I don't know your holidays, I don't know your work pattern anymore.
If TUPE applies (I don't think so as it's a very small proportion of employees and no assets transferring) then the employee should be getting like with like but as I've said Employer A has washed hands 100%.

Misguided1 · 14-09-2018 3:53pm

slave1 wrote: »

Yeah, I'm thinking it's not a redundancy now.
Would like to think it was a heads up but it wasn't, no indication of what was happening before the meeting and at the of the meeting employee told you are effectively not my employee now, here's your new bosses phone number, phone him with any queries, I don't know your rate of pay, I don't know your holidays, I don't know your work pattern anymore.
If TUPE applies (I don't think so as it's a very small proportion of employees and no assets transferring) then the employee should be getting like with like but as I've said Employer A has washed hands 100%.

That's very strange to be honest. I'd submit a request in writing to both the old and new employer asking for an explanation and for full detail etc. etc.

OMM 0000 · 14-09-2018 3:55pm

It sounds like the company are still figuring out things, and are just letting the employees know a change is happening.

As a manager I can kind of visualise how this could happen. There's so much involved in this handover, and they're juggling many things, so they're probably very stretched. As they've likely never done anything like this before, it's probably not going perfectly.

If I was the employee I would take a wait and see approach. There's really not enough information at this stage. Maybe the new employer and employment conditions will be even better, right?

slave1 · 14-09-2018 3:59pm

The employee in question has taken it badly and had no sleep last night, headaches today and tears so I've just said to them to leave it for a week as they are in no fit state to talk to new employer, feel very let down by Employer A who has washed their hands...

IITYWYBMAD · 17-09-2018 12:47pm

Misguided1 wrote: »

Outsourcing a function to another employer is transferring part of your business to another employer - thus a TUPE is very likely to apply. In this case if the employee chooses not to transfer, they will effectively resign their position. The role is not redundant - it is transferring to another employer under a TUPE.

Sounds to me like the meeting was more of a heads up and that a more formal communication will follow. TUPE has very particular guidelines as to what information needs to be shared, when etc.

But what you have described is, imo, not a redundancy.

TUPE will only apply, if the Employee moves under the same conditions.

In reading the OP, it appears that this may not be the case.

Should the Employee be offered lesser conditions, then TUPE will not apply.

Consideration has also to be given to what else is moving to Company C. The regulations regarding TUPE deem that there must be a transfer of significant tangible or intangible assets of that the majority of the workforce (in either real numbers or skills) must be enacted in order for TUPE to apply.

As this is a transfer of labour and Company B appears to be only taking a single Employee, well then I do not think TUPE will apply.

slave1 · 25-09-2018 5:25pm

So the EE gave me a call earlier as after a good bit of chasing finally got a face to face with Employer B but not the owner, it was the new manager

Rate of pay is less - 15% less based on current work hours
No Sunday/Public Holiday pay increment is the main reason (works a lot of Sundays/Public Holidays)
Will not honour existing holiday balance, wants Employer A to pay for them but Employee has 3 weeks due and not taken a day off since Spring and would prefer paid time off
No contract forthcoming and told date of transfer of employment is October 1st
EE has a traditional work day pattern that ER B will not commit to honouring
ER B will not commit to same level of PPE - role involves handling of cleaning chemicals, current employer provides these

Basically Manager B had nothing in hand and IMHO was on a fact finding mission....

EE in question has tried to get onto existing manager but no response....thoughts anyone?

seagull · 10-10-2018 1:36pm

A is trying to dodge paying redundancy. No way is this a TUPE.

slave1 · 11-10-2018 7:14pm

I asked EE to put her requests to date in writing because everything to date has been verbal, no written notification, no formal notice, no meeting notes.
Registered letter arrived the next day with most of EE queries addressed and the proper 30days notice.
EE feeling much better about it now, breathing room was nice

slave1 · 11-10-2018 7:15pm

ER also stated TUPE applies so their pay will not be impacted nor their work pattern for the first 6 months

Advice re EE being passed onto third party

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