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Refusing the transfer

As an individual you don’t have many options under TUPE, but you can refuse the transfer. That doesn’t mean you get to stay with your current employer – you can ask, but given they are trying to sell your contract of employment it’s unlikely. Instead, it means your employment ceases when the transfer takes place, but you don’t get a pay-off.

If you definitely don’t want to work at the new place, and/or you have plans about what to do next, it has the single advantage that you will not have to work out your notice period. You could also use it as a threat, but like all threats, you risk having to go through with it or looking like you didn’t mean it.

It’s rarely a good option. “Don’t be premature in saying, I don’t want to work for them,” advises Deborah West, employment partner for IT specialist law firm Temple Bright, adding that affected staff “would be better to transfer then see how the land lies – unless of course they’ve found another job”.

Outsourcing

TUPE has been around a long time, and used to be vague on whether it covered staff moving as a result of outsourcing deals, says Deborah West, but a 2006 update explicitly covers service provision transfers, whether this is staff leaving the firm served, staff moving from one outsourced provider to another or being insourced back again.

She says there have been legal cases over whether someone is covered by such deals: “Simply spending most of your time working for a client won’t be enough for TUPE to catch you.” As a result, many outsourcing companies structure staff in teams dedicated to individual clients, so it is clear who will and will not move if a contract is lost: “If they’ve got any sense, they will organise themselves that way,” she says.

Going to law afterwards

The good news is that some TUPE protection does not expire. “There’s no point in time that the new contractor [for transferred outsourcing] is safe in making changes, if those changes can be linked to TUPE,” says Deborah West.

The new employer can’t harmonise terms, such as levelling down holiday entitlements to the company norm: “Any attempt to change them will be void, even if the employee agrees,” she says. “The new contractor will know they have to tread very, very carefully.”

The bad news is that new employers can either use the ETO exceptions previously mentioned or simply ignore the rules, which for those without a union’s legal service may mean finding a lawyer, usually through a personal recommendation or a first meeting. In some cases this needs to be done quickly; a claim based on a failure by the transferring employer to inform and consult has to be made within three months, says Fiona Martin of Martin Searle Solicitors.

The further bad news is that this is not an area covered by legal aid, unless discrimination has taken place. However, Fiona Martin says that some home insurance policies include legal cover and firms including her own offer a relatively cheap initial consultation. There is also the option of a damages-based agreement – a kind of no-win no-fee arrangement – if litigation results.

Slater&Gordon’s Edward Cooper says that mediation can be a better option: “Litigation is not always predictable, it’s not always successful and it may not lead to the result the individual wants,” he says; winning a case could result in money, but no job. And if someone is funding it themselves, litigation will usually cost thousands of pounds to fight, not to mention the stress: “It’s a last resort.”

It probably won’t feel like it, but this may end up being a good thing While staff transferring can be grateful that TUPE exists at all, an unplanned change of employer is always likely to be disruptive. But it can also be positive, at least retrospectively. It is possible to find yourself going from an organisation where IT is a sleepy backwater to one where it is the main business, opening new career opportunities. Or, if the move is an unhappy one, the experience can motivate you to find a better job, with a cast-iron answer to questions over why you want to move.

What TUPE is unlikely to mean is business as usual. Treat it seriously, know your rights, argue your case (although do so constructively) – and be ready to move on if things don’t work out at the new firm. Good luck. ®

The writer has himself been TUPEd.

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