ChatterBank1 min ago
Employment law after TUPE
32 Answers
I have bought an established business, which starts trading under my name on 1st September. There are members of staff, which will be TUPE'd across to me, however, there is one member that is currently a supervisor and I don't wish her to continue that role.
I know I'm not allowed to drop her wage, which I've made my peace with, but am I allowed to demote her with no consequences legally?
Thanks
I know I'm not allowed to drop her wage, which I've made my peace with, but am I allowed to demote her with no consequences legally?
Thanks
Answers
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I believe that you can restructure to allow for the fact that you have taken on new staff with the new business, but you're not allowed to reduce her salary - she has to remain on the same terms and conditions - that's what's happened to me the two occasions in recent years when I've been TUPEd into new organisations. Others will know the legal side better than I do, but I believe you can change her job as long as you keep her pay and conditions the same.
Don't take my word for it, check here first http://www.tssa.org.u....php3?id_article=1382
The ACAS website here also has a couple of useful links http://www.acas.org.u...x.aspx?articleid=1655
I hope someone skilled in employment law will answer your question, I can only speak from my own experience as a TUPEd employee, with access to union backing if i needed it.
The ACAS website here also has a couple of useful links http://www.acas.org.u...x.aspx?articleid=1655
I hope someone skilled in employment law will answer your question, I can only speak from my own experience as a TUPEd employee, with access to union backing if i needed it.
It's possible that the (former) supervisor might quit and then take you to an industrial tribunal on the grounds of 'constructive dismissal' but it's by no means certain that a tribunal would uphold such a claim.
To explain further, please consider an extreme example. Let's suppose that a guy in the City of London is earning half a million pounds per year as a senior banker. His new employer realises that he can't be sacked but he gets demoted to tea boy on the same pay. That employee would almost certainly be in a position to claim 'constructive dismissal' because, if he wanted his status within banking to stay the same and his career to progress, he'd need to get out of that company as soon as possible.
Your supervisor MIGHT be able to claim something similar but her situation is far less clear cut.
Chris
To explain further, please consider an extreme example. Let's suppose that a guy in the City of London is earning half a million pounds per year as a senior banker. His new employer realises that he can't be sacked but he gets demoted to tea boy on the same pay. That employee would almost certainly be in a position to claim 'constructive dismissal' because, if he wanted his status within banking to stay the same and his career to progress, he'd need to get out of that company as soon as possible.
Your supervisor MIGHT be able to claim something similar but her situation is far less clear cut.
Chris
Hmmm. OK, how about if I'm completely straight with her about it?
She's not good at her job and it's to the detriment of the current owners, who don't have much to do with the day to day running of it. I work there right now and see first hand how much she struggles.
If I tell her this is how I feel, demote her and give her the proper training etc. before she is promoted back up to supervisor level, would this cause me more problems?
p.s. I'd love to be tea lady for half a million! LOL
She's not good at her job and it's to the detriment of the current owners, who don't have much to do with the day to day running of it. I work there right now and see first hand how much she struggles.
If I tell her this is how I feel, demote her and give her the proper training etc. before she is promoted back up to supervisor level, would this cause me more problems?
p.s. I'd love to be tea lady for half a million! LOL
We're into individual personalities here, which isn't my forte!
You need to consider who'll be taking over as your new supervisor. If it's an employee who is the best friend of the current supervisor, the 'dodgy' supervisor will probably welcome the chance to be able to relinquish responsibility (without loss of pay) and to see here friend getting on.
However if there's already clear enmity between the 'old' and 'new' supervisors, the 'old' one might not take it too well if she now has to take instructions from her former (and continuing) adversary.
Chris
You need to consider who'll be taking over as your new supervisor. If it's an employee who is the best friend of the current supervisor, the 'dodgy' supervisor will probably welcome the chance to be able to relinquish responsibility (without loss of pay) and to see here friend getting on.
However if there's already clear enmity between the 'old' and 'new' supervisors, the 'old' one might not take it too well if she now has to take instructions from her former (and continuing) adversary.
Chris
Nobody will be given the job instead of her. I'll be there 24/7. The restructure is genuinely accurate, but I wouldn't demote her if I thought she did her job well enough.
I was given the option of the current owners folding their business so everyone is out of a job. They told me that there must be a 48 hour grace period before I start running it under my name, which means I can offer the employee's a job and I just don't offer her a job back. I don't know if this is accurate, it's just what they told me.
Personally, I felt that option was way too harsh and it's messing about with people's life, which is why I said not to do that and I'll go ahead with the TUPE.
I was given the option of the current owners folding their business so everyone is out of a job. They told me that there must be a 48 hour grace period before I start running it under my name, which means I can offer the employee's a job and I just don't offer her a job back. I don't know if this is accurate, it's just what they told me.
Personally, I felt that option was way too harsh and it's messing about with people's life, which is why I said not to do that and I'll go ahead with the TUPE.
Lakitu, this puts a different perspective on it, if she is not performing. Do you have a capability policy as part of your organisational policies (which will now apply to her in the new organisation)? We do (I work in the public sector), and the situation you describe would be dealt with under that. You would have to have a meeting with the person, describe how she is not meeting her job objectives (presumably she had objectives in her last year's appraisal?) then look to see how she could be developed and supported to help her raise her game. You then review every month, and only if she doesn't come up to scratch can you do anything about demotion on the grounds of incapacity. It can be a long slow process if you want to go down that route - and things may apply differently in a privately owned company, I don't know.
LOL, that was going to be my next question.
No contract currently so what exactly am I TUPEing across and can I create contracts? even if they're different?
I think it's 3 months or so the employer must give the contract, but it never happened. We don't get pay slips either! LOL
Yep, current owners are a nightmare!
No contract currently so what exactly am I TUPEing across and can I create contracts? even if they're different?
I think it's 3 months or so the employer must give the contract, but it never happened. We don't get pay slips either! LOL
Yep, current owners are a nightmare!
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