# can an employer back out of a TUPE agreement on redundancy pay?



## Orang Utan (Sep 21, 2009)

the firm we've been outsourced to seem to want to back out of an agreement where, should they make redundancies, they said they'd match the old employer's redundancy package (one month's pay for one year's employment). now they want to change it to statutory, to match their policy to the rest of the company. the union disputes this.
can they get away with it?


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## paolo (Sep 21, 2009)

Orang Utan said:


> the firm we've been outsourced to seem to want to back out of an agreement where, should they make redundancies, they said they'd match the old employer's redundancy package (one month's pay for one year's employment). now they want to change it to statutory, to match their policy to the rest of the company. the union disputes this.
> can they get away with it?



I thought that was a key plank of TUPE, i.e. your terms of employment carry over. Sounds dodgy to me, but I'm not best to advise.


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## cesare (Sep 21, 2009)

On face value from what you've told us, the new employers want to change a substantial aspect of the transferring employees' terms and conditions, to their material disadvantage - so no.

What form did this agreement take btw?


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## Orang Utan (Sep 21, 2009)

cesare said:


> What form did this agreement take btw?



what do you mean?


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## Spark (Sep 21, 2009)

Was it part of your terms or conditions or part of some other formal redundancy policy which everyone knew about? or was it discretionary?  

If you can prove that it was a contractual entitlement with your old employer then the new employer will be bound by that.  If it was discretionary then it will be trickier to argue that they have to pay you the enhanced payment.  Which union is it who are challenging the new employer?


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## temper_tantrum (Sep 21, 2009)

Is it written down somewhere, this previously understood agreement with your former employer?

And how long ago did you TUPE?


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## cesare (Sep 21, 2009)

Orang Utan said:


> what do you mean?



I was wondering what form this agreement took. We don't really know enough about this 'policy' (as Spark mentions) - it could have been a temporary policy covering a certain set of circumstances for instance. 

Also, this agreement might be incorporated into the outsourcing contract ...


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## Orang Utan (Sep 21, 2009)

cesare said:


> I was wondering what form this agreement took. We don't really know enough about this 'policy' (as Spark mentions) - it could have been a temporary policy covering a certain set of circumstances for instance.
> 
> Also, this agreement might be incorporated into the outsourcing contract ...



AFAIK, it was company policy for years and was part of the TUPE contract.
they said that should there be redundancies after it the TUPE agreement expires, they'd honour the previous employer's conditions. but now they're saying they'll make it statutory.


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## Orang Utan (Sep 21, 2009)

temper_tantrum said:


> Is it written down somewhere, this previously understood agreement with your former employer?
> 
> And how long ago did you TUPE?



August 2008
TUPE runs out in Jan 2011 I think


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## TitanSound (Sep 21, 2009)

Orang Utan said:


> they said that should there be redundancies after it the TUPE agreement expires, they'd honour the previous employer's conditions. but now they're saying they'll make it statutory.



As far as I am aware TUPE agreements do not expire unless you sign a new contract with new terms and conditions.


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## temper_tantrum (Sep 21, 2009)

Orang Utan said:


> they said that should there be redundancies after it the TUPE agreement expires, they'd honour the previous employer's conditions. but now they're saying they'll make it statutory.



So they're not seeking to vary the TUPE, they're stating what's going to happen once the TUPE has run out?

Edit: I think that legally, TUPE doesn't run out per se but the longer ago you TUPE'd the less your chance of defending your existing conditions if the employer can present reasonable grounds for wanting to vary them (eg. other staff are on lower T&Cs) - does any expert out there know if this is the case?


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## Orang Utan (Sep 21, 2009)

temper_tantrum said:


> So they're not seeking to vary the TUPE, they're stating what's going to happen once the TUPE has run out?
> 
> Edit: I think that legally, TUPE doesn't run out per se but the longer ago you TUPE'd the less your chance of defending your existing conditions if the employer can present reasonable grounds for wanting to vary them (eg. other staff are on lower T&Cs) - does any expert out there know if this is the case?



i think so, yes. makes the op slightly inaccurate, i guess! i was angry and haste made me choose my words poorly


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## cesare (Sep 21, 2009)

Orang Utan said:


> AFAIK, it was company policy for years and was part of the TUPE contract.
> they said that should there be redundancies after it the TUPE agreement expires, they'd honour the previous employer's conditions. but now they're saying they'll make it statutory.



There isn't a TUPE contract as such. You have the employment contracts which can be set out in several different documents, including policy statements such as the redundancy policy. 

There is a separate outsourcing agreement which sometimes incorporates TUPE related warranties and indemnities.

And there might also be a separate agreement with the union and/or individuals that was reached during the individual/collective consultations during the TUPE transfer.

So there are a number of places where the agreement might be expressly set out, that the union might rely on if they're contesting what the new employer is doing.


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## Orang Utan (Sep 21, 2009)

this is all very confusing.


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## temper_tantrum (Sep 21, 2009)

The main question in your situation seems to be, over what timescale is it appropriate/acceptable for employers to seek to vary conditions which were guaranteed under TUPE?

I don't know the answer to that!

Edit: Good luck though.


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## Spark (Sep 21, 2009)

TUPE doesn't run out, ie there isn't a fixed period of time within which the new employer is bound by type.  The issue is whether any changes are tupe related.  If they are generally the change will be void (although under new tupe there are some situations where changes can be agreed).  The more time which expires post transfer the less likely it is that a tribunal would find that the change is tupe related.

With things like enhanced redundancy terms, if they were originally contractual employees can still be entitled to them years after the transfer (I came across a case recently which involved a transfer which happened over 15 years ago).

For OU - you need to find your original terms and conditions plus any documents relating to the old company's redundancy pay policy.  Also, there may have been collective agreements which included the redundancy terms.  If they applied to you at the time of the transfer they would possibly still apply.  

If the old company's terms weren't included in any formal documents it can sometimes be possible to argue they have become contractual through custom and practice, but this is very very hard to prove.


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## cesare (Sep 21, 2009)

TUPE doesn't run out or expire, but time will diminish the causal link with TUPE - depending on what's trying to be changed and the reasons why.


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## Orang Utan (Sep 21, 2009)

cesare said:


> TUPE doesn't run out or expire, but time will diminish the causal link with TUPE - depending on what's trying to be changed and the reasons why.



well there was some kind of 30 month stipulation


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## sojourner (Sep 21, 2009)

Any way you can find out what the exact terms are?


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## cesare (Sep 21, 2009)

Orang Utan said:


> well there was some kind of 30 month stipulation



An important thing to remember is that the parties cannot contract out of TUPE. 

Any stipulation might be tied in with indemnities in the outsourcing agreement e.g. if you break your commitment to the old redundancy policy, you will have additional penalties from the old employer/lose the outsourced contract etc etc etc. 

But they can't introduce a stipulation to over-ride the TUPE regs.


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## Spark (Sep 21, 2009)

Orang Utan said:


> well there was some kind of 30 month stipulation



that may just be the length of the original contract with your current employer and whoever they have a contract with (ex-employer of other client company).  This shouldn't have any effect on your rights becuase from an employee point of view the purpose of TUPE is to basically maintain the status quo.


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## Orang Utan (Sep 21, 2009)

sojourner said:


> Any way you can find out what the exact terms are?



i don't know. i'm trusting my union to know though.


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## sojourner (Sep 21, 2009)

Orang Utan said:


> i don't know. i'm trusting my union to know though.



Well, if it was me, and I was 'allowed' to see those documents, I'd be after seeing them and making sure for myself

good luck with it all


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## jonajuna (Sep 22, 2009)

in my limited experience, TUPE is worth squat

pretty much anything can be excused under Technical Organisational Or Economic reasons

when i was TUPE'd April 2008, even the union didnt have a clue what was going on.

about the only thing i feel that i have got safe, is my pay point and my pension.. well til the government screws me over on that too


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## Grandma Death (Sep 22, 2009)

TitanSound said:


> As far as I am aware TUPE agreements do not expire unless you sign a new contract with new terms and conditions.



I think thats correct. A 90 day notice has to be served prior to the new contract being signed too.


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## equationgirl (Sep 22, 2009)

90 day notice? Is that prescribed under law? Only, the company I work for has just gone through an extremely long and tortuous TUPE process with a company that can be viewed at best as duplicitous, and we were told the 90 day notice period wasn't a legal requirement.

Especially as they then told people we had a weekend to decide if we wanted their shitey terms or not. No-one to my knowledge is taking them.


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## Phenotypic Dai (Sep 22, 2009)

I too have been shafted by TUPE.

Had a nice little non discretionary bonus going before the TUPE. It was lovely stuff, paid for a foreign holiday, that kind of cash. 

Anyhoo, after the TUPE the new company denied having to pay it, and came out with a load of bullshit saying our contracts stated no such thing. We grumbled and stamped our feet, but they were having none of it.

13 months down the line, they're now trying to harmonise terms and conditions across the group and sent out a letter showing their draft for the new contract. It landed on my mat this morning. In the draft they've provided a nice little graphic showing how the new terms line up compared to the current contract. Where it says performance bonus it's got a lovely big tick in the box under the new terms, and funnily enough, also under the old terms.


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## Orang Utan (Sep 22, 2009)

i really hope we don't get fucked over - i just turned down an ex-gratia loss of office payment of £20k and am now kicking myself.
union meeting on friday.


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## temper_tantrum (Sep 22, 2009)

Do you mean a £20k redundancy offer?

Go back to your employment contract, I'd say. Whatever is in there is most difficult to vary. As Dai says, other stuff which isn't spelt out in the contract itself is much easier to disregard.

Good luck with it all!


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## Orang Utan (Sep 22, 2009)

no, not technically a redundancy offer, they get round it by calling an ex-gratia loss of office payment. the position hasn't been made redundant, so they can't call it that. i held on, cos i thought they'd make us properly redundant in 2011. then i'd we'd hopefully have been out of a recession and i would have got more money. so if we just get statutory, i've just made the worst decision in my life.


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## temper_tantrum (Sep 22, 2009)

Oh I see, a 'bugger off and let's keep this just between the two of us' offer?
Bummer 

Edit: You must be on pretty good T&Cs (or be a major pain in the arse!) for them to hold out that kind of money ...


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## Orang Utan (Sep 22, 2009)

temper_tantrum said:


> Oh I see, a 'bugger off and let's keep this just between the two of us' offer?
> Bummer
> 
> Edit: You must be on pretty good T&Cs (or be a major pain in the arse!) for them to hold out that kind of money ...



we cost them too much - our new colleagues with the same job titles get paid 10K less than we do, so i think they might be anxious to get rid of us, BUT our skillset also makes us more desirable to keep on (most of us have 10-20 years experience in a specialist area), so it's hard to fathom what they have planned for us. i think they probably want us to spread our knowledge, let them soak it up and then fuck us over.


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## temper_tantrum (Sep 22, 2009)

Are you in a public sector pension scheme? If so, then that could quite possibly be the driver. Pension fund deficits are driving up employer contributions and if you've got good schemes (eg. final salary or some other defined benefit scheme) then you're probably proving very expensive to retain.


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## Orang Utan (Sep 22, 2009)

not public sector no, well not quite. tis a very cushy one though.


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## temper_tantrum (Sep 22, 2009)

There you go then. Probably worth getting rid of you to avoid the employer pension contributions. Might be worth checking what pensions your newer colleagues are on - quite possibly not as good as yours?


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## Orang Utan (Sep 22, 2009)

yeah, it's hard to ask, cos then they'll ask you. then they'll ask how much we get paid.
so, we're already started on division and concealment. not a great recipe for a harmonious workforce.


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## temper_tantrum (Sep 22, 2009)

Very true.
I always tell people what I'm paid etc. I mean, I don't shove it in people's faces or whatever but if it comes up in conversation then I just state it clearly. It's the only way to undermine the divide and rule mentality.
Edit: Ok, not the only way. But it helps other people to be able to benchmark themselves.


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## Orang Utan (Sep 22, 2009)

yes, i would tell if asked. 
had a moment of solidarity with them today when i asked some people about getting hold of stationery - they just laughed and told me to wait til you were working at the weekend and then steal it off another department.


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## Grandma Death (Sep 24, 2009)

equationgirl said:


> 90 day notice? Is that prescribed under law? Only, the company I work for has just gone through an extremely long and tortuous TUPE process with a company that can be viewed at best as duplicitous, and we were told the 90 day notice period wasn't a legal requirement.
> 
> Especially as they then told people we had a weekend to decide if we wanted their shitey terms or not. No-one to my knowledge is taking them.



I believe so...though I'm not entirely sure. Where I work 90 day notices have to be served on the estate management officers because they are getting rid of essential car user-something that was in place when were we TUPE'd over from the local authority.


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## Orang Utan (Oct 15, 2009)

so, they want to reduce redundancy payments to statutory AND they want to get rid of discretionary sick pay now. CUNTS! i want to join the RM and go on strike now! Union is now officially in dispute with our employers


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## sorearm (Oct 17, 2009)

Orang Utan said:


> so, they want to reduce redundancy payments to statutory AND they want to get rid of discretionary sick pay now. CUNTS! i want to join the RM and go on strike now! Union is now officially in dispute with our employers


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