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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Whenever someone works for an employer a contract exists, even if nothing is put into writing. (If you offer me a fiver to do your shopping for you, and I agree, we've both entered into a legally binding contract). However all employees are entitled to receive a 'written statement of employment particulars' within two months of the commencement of their contract. That statement doesn't need to be a formal document headed as 'Contract of Employment'. As long as it contains the relevant information it could simply be a letter offering the new employee a job:
http://www.direct.gov...dConditions/DG_175704
If your employees haven't received such a statement, you should ensure that they do so as soon as possible after you take over the business.
You should also ensure that your employees receive detailed pay slips:
http://www.direct.gov...oyees/Pay/DG_10027228
Unless your supervisor (and other staff) are particularly litigious, the chances are that you could demote the supervisor and sneak staff appraisals into their contracts without any real problems. The firm I worked for until recently had a delivery driver who had previously been both the drivers' manager and a company rep. She'd been demoted twice (including, I assume, with a loss of pay) on the grounds of not being good enough at her job, without any legal problems arising.
Chris
http://www.direct.gov...dConditions/DG_175704
If your employees haven't received such a statement, you should ensure that they do so as soon as possible after you take over the business.
You should also ensure that your employees receive detailed pay slips:
http://www.direct.gov...oyees/Pay/DG_10027228
Unless your supervisor (and other staff) are particularly litigious, the chances are that you could demote the supervisor and sneak staff appraisals into their contracts without any real problems. The firm I worked for until recently had a delivery driver who had previously been both the drivers' manager and a company rep. She'd been demoted twice (including, I assume, with a loss of pay) on the grounds of not being good enough at her job, without any legal problems arising.
Chris
blimey no pay slips? that is I think you will find quite illegal! But anyway, we went through the TUPE training process with ACAS as part of our role as area reps to the collective consultation and at every turn the company were able to wriggle out of a TUPE commitment because of this slight change and that proposal, it was extremely complex, ACAS offer the services of a consultant (at a fee). I had all the stuff from their website printed out at the time but I chucked it all away I think.
in a true TUPE situation however, I believe you can't pick and choose, it;s either all are TUPE employees or not. (could be wrong though)
in a true TUPE situation however, I believe you can't pick and choose, it;s either all are TUPE employees or not. (could be wrong though)
I know nothing legal but from what you say wouldn't it be easier to just restructure the business and say you don't need a supervisor as you will be filling that role. Then offer her the choice of redundancy or lower grade job.
If she takes redundancy pay her off and be grateful she has gone. If she choses a lower grade job keep an eye on her and give her proper training.
Either way you don't have to worry about what you are goping to say to her.
If she takes redundancy pay her off and be grateful she has gone. If she choses a lower grade job keep an eye on her and give her proper training.
Either way you don't have to worry about what you are goping to say to her.
I'm afraid that I'm going to have disagree with a few of the earlier comments. TUPE means that the undertaking as an employer transfers to you as the new employer with the same terms and conditions as the old employer ON THE DAY OF THE TRANSFER. Nothing more and nothing less. So what you decide to do after that transfer is up to you, but remember that the transferred employees have an effective start date on the DATE THEY ORIGINALLY JOINED the original employer.
If you wish to restructure the role, or make her redundant because you don't have a requirement for a supervisor, that is entirely up to you. Her period of service for statutory redundancy entitlement calculations is the date she originally joined. If you wish to change the role to someone different (a worker say, because you have no need of a supervisor any more) you need to consult and you need to give she appropriate notice once you have finally decided what to do (one week per complete week of employment up to a maximum of 12 - unless here specific T&Cs say something longer than the statutory).
If she resists this change to another role at possible a different salary and doesn't want it, the safest thing from an employment law point-of-view would be to declare the supervisor job redundant and pay her off.
Remember that you cannot then replace the role - because it is redundant - at least not for a period of at least 3 months - by which time the maximum period for her to lodge a claim at the ET is passed. Remember that redundancy is one of the 'fair' (in a legal sense) reasons for dismissal.
If you wish to restructure the role, or make her redundant because you don't have a requirement for a supervisor, that is entirely up to you. Her period of service for statutory redundancy entitlement calculations is the date she originally joined. If you wish to change the role to someone different (a worker say, because you have no need of a supervisor any more) you need to consult and you need to give she appropriate notice once you have finally decided what to do (one week per complete week of employment up to a maximum of 12 - unless here specific T&Cs say something longer than the statutory).
If she resists this change to another role at possible a different salary and doesn't want it, the safest thing from an employment law point-of-view would be to declare the supervisor job redundant and pay her off.
Remember that you cannot then replace the role - because it is redundant - at least not for a period of at least 3 months - by which time the maximum period for her to lodge a claim at the ET is passed. Remember that redundancy is one of the 'fair' (in a legal sense) reasons for dismissal.
You have 8 weeks to provide a document which details the terms and conditions of employment.
Chris it is an Employment Tribunal not Industrial Tribunal and has been for many years.
Lakitu how do you know that the employee is not performing? You have several options. You could make the person redundant after the transfer or offer, under the reorganisation, a different job, or you could go along the capability route and aim to improve the performance.
Chris it is an Employment Tribunal not Industrial Tribunal and has been for many years.
Lakitu how do you know that the employee is not performing? You have several options. You could make the person redundant after the transfer or offer, under the reorganisation, a different job, or you could go along the capability route and aim to improve the performance.
Sorry, demote her through restructure.
Rightly or wrongly, I'm not hard nosed enough to dismiss her just like that, I'd like to give her the opportunity to earn her way back up, if it doesn't work out, then so be it.
Y'know, though, I'm a bit ticked off right now though. She was told on Wednesday by the current owners and myself what is happening and she was really happy about it. When we were alone she said she'll work so hard for me etc., and that she's been in a "can't be arsed" mood for the last few months but she'll work hard for me.
I told her that that mood has reflected her performance and it's not something I want see to continue when it's MY business that suffers for it, however I wasn't going to go into details about that until the day I get the keys.
So yesterday, I wasn't working but the member of staff that she was working with told me she said she was happy about me buying the place but she "doesn't like change" and is not sure how she'll cope with that and not sure how she'll cope with being told what to do by me and that she thinks she and I will "lock horns".
This has just pee'd me off. Lock horns? Erm, I don't think so. It's my business and that is that.
OK, my wee moan is over LOL. x
Rightly or wrongly, I'm not hard nosed enough to dismiss her just like that, I'd like to give her the opportunity to earn her way back up, if it doesn't work out, then so be it.
Y'know, though, I'm a bit ticked off right now though. She was told on Wednesday by the current owners and myself what is happening and she was really happy about it. When we were alone she said she'll work so hard for me etc., and that she's been in a "can't be arsed" mood for the last few months but she'll work hard for me.
I told her that that mood has reflected her performance and it's not something I want see to continue when it's MY business that suffers for it, however I wasn't going to go into details about that until the day I get the keys.
So yesterday, I wasn't working but the member of staff that she was working with told me she said she was happy about me buying the place but she "doesn't like change" and is not sure how she'll cope with that and not sure how she'll cope with being told what to do by me and that she thinks she and I will "lock horns".
This has just pee'd me off. Lock horns? Erm, I don't think so. It's my business and that is that.
OK, my wee moan is over LOL. x
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