# TUPE or not TUPE / Redundancy or resignation



## kierank01 (20 Feb 2011)

Hi, I (currently) work for a company that provides outsourced tech support to various international companies.

The customer for the desk that I work on has decided to insource the tech support for commercial reasons. The jobs (23) will be moving to the UK.

They are claiming that TUPE does not apply, and my company are claiming that it does, and there are legal arguments going on, to decide which is correct.

There are a number employees that would not be in a position to work in the UK, should TUPE apply (maternity leave/single parent).

We have been informed that if you opt out of TUPE, there was a high court judgment, that this is deemed as resignation, and you would not be entitled to any redundancy payment.



> If a contract of employment is terminated because the transfer involves a  substantial change in working conditions to the detriment of the  employee concerned, the termination will be deemed to have been effected  by the employer


By the jobs moving to the UK, could we argue that there is a substantial change, to our detriment, or is there grounds for some sort of unfair/constructive dismissial claim?

TIA.


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## robbie00 (20 Feb 2011)

Hi,

I had the option last year of TUPE to another company providing technical support or to take the redundancy. You do not have to automatically accept the TUPE option no matter what either of the companys are telling you.

I took the redundancy option as it suited myself. Pick whichever you want to do and dont let them dictate to you what you should do.

Regards,
Rob


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## kierank01 (21 Feb 2011)

robbie00 said:


> Hi,
> 
> I had the option last year of TUPE to another company providing technical support or to take the redundancy. You do not have to automatically accept the TUPE option no matter what either of the companys are telling you.
> 
> ...




Thanks Rob, I would appreciate if you could be specific on dates (please PM me if you don't want to post the details publicly), as our employer is saying that the law has changed(2 years ago), and that to opt out of TUPE, would constitute a resignation, and no redundancy would apply.


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## Mpsox (21 Feb 2011)

Your're employers are correct in that there was a legal decision in the High Court involving a company called Symantic Ltd. Previously an Employee Appeals Tribunal had held that if staff members did not want to transfer over, then they could stay with their existing employer, who, if they had no suitable positions, would then be liable for the cost of redudancy.. The High court overturned this.

Given the circumstances of your position, ie, that the transfer is occuring because your customer is taking the service in house and that the offer of alternative employment means going overseas, you need to get the advice of a good HR lawyer on this as there may be different interpetations of TUPE in the UK and in Ireland


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## robbie00 (21 Feb 2011)

I was with a very large financial company up until last year when I was offered the option of TUPE and if I didnt accept this I would be deemed to ahve accepted the redundancy terms. 

In Ireland you have the choice to Tupe or not to Tupe. In England the law is different if you have an option to Tupe you must accept it or resign there is no redundancy. 

So from what I know of the process and what I was advised by my trade union9who were legally advised) you would be entitled to take redundancy if you didnt opt to Tupe.

Regards,
Rob


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## ggalrossy (21 Feb 2011)

robbie00 said:


> I was with a very large financial company up until last year when I was offered the option of TUPE and if I didnt accept this I would be deemed to ahve accepted the redundancy terms.
> 
> In Ireland you have the choice to Tupe or not to Tupe. In England the law is different if you have an option to Tupe you must accept it or resign there is no redundancy.
> 
> ...



Correct, your well protected with the Irish Laws and their application wrt your current situation. Of what you have said was possible, you'd have many more companies moving abroad saving redundancy payments through forced resignation and allowing them to avail of irish aid grants with the intention of moving once established.


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## kierank01 (27 Apr 2011)

If anyone is interested, we got the help of the CWU, and we fought with and came to a compromise with our company, that the tupe rules could not be applied, that they would make us fully (properly) redundant, which is all we wanted.


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## Majex (10 Jun 2011)

MPSox is right.  Its not that the Law changed but that the Judge clarified the existing TUPE regulations.  He said that if you refused to move then you were resigning.

It seems that the employer does not have to offer redundancy as it shouldnt be available in a resignation scenario.


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