# TUPE & employee notice to employer



## J.P. (24 Dec 2006)

Hi,

I have a question re. transfer of undertaking, which I would appreciate some help with please.

I currently work for Company X (& I have done so for over 10 years), which is in the process of being taken over by Company Y. All employees will tranfer to Company Y under TUPE with the same terms and conditions, etc. All employees  received a letter a few weeks ago advising that the date of transfer to the new company will be the 29/01/07. Now as I do not plan in joing Compnay Y, my question is : Do I need to give notice to my current employer  that I do not intend joing Compnay Y , & if so, how much notice is required ? Under normal circumstances if I was leaving company X, I would need to give two months notice, but in this case I'am not sure what my legal obligations are in this scenario. 
The current HR Manager advised a group meeting before we broke up for Christmas that, any person who  did not plan in joining  Company Y, they need not report for work on the 29/01/07. So, do I have to do anything ?

Any advice would be appreciated.

Happy Christmas


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## RainyDay (24 Dec 2006)

The Employee Rights unit of the Dept of Enterprise might be the best people to talk to after the Christmas break. If you are a union member, you should consult with your union as well.

I presume if you are not transferring to the new company, you are getting redundancy payments from Company X? Have you anything to lose by informing the HR people of your intentions?


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## J.P. (25 Dec 2006)

Redundancy is not on offer - the options outlined to us are to either join the new company or to leave & find alternatvie employment. I don't think redundancy is an entitlement under TUPE  ?


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## Marie (26 Dec 2006)

Correct J.P!  Employers use TUPE arrangements to avoid redundancy payments.  Are you leaving at this stage because continuing working for the new outfit 'beyond the TUPE' involves loss of status or income, or is more difficult to reach?  If your job is being substantively changed and if getting other employment in February will be difficult for reasons of age or location you should discuss this with a solicitor familiar with employment legislation and company law as you would effectively be experiencing a "constructive dismissal" through the restructuring of your firm.  If that is the case you need expert advice _before committing to ANYTHING and before writing/signing ANYTHING!_   My commiserations to you at having to face something like this at the beginning of a New Year and all the best with it!  It would be interesting to get an update of how things pan out.


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## J.P. (26 Dec 2006)

Thanks Marie,

The reason I plan to leave is that the new company has a very poor track record & in addition it has no knowledge / prior experience  of the business they are purchasing. 
The role I currently occupy, the same role is on offer to me by the new company, same location, terms, etc...., for the moment the role will not be substantively changed. 
You ask if "_ getting other employment in February will be difficult for reasons of age or location" _- I expect this could be the case. Assuming I can overcome the age one, I will be looking at a significant commute for sure, maybe even a possible relocation - don't know yet. 

Basically, under TUPE as I understand it, the employee has two choices : 1. Join the new company or
2. Leave of their own accord.

If an employee does not wish to join the new company, I'am not aware of any  onus of responsibility on the old employer towards the employee in this situation.


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## Marie (26 Dec 2006)

J.P. that last point is what you need expert advice to check out.  My experience of this is the NHS here in the UK where many services are being 'contracted out' under TUPE arrangements.  On the surface everything looks "hunky-dory" as pension entitlement, retention of salary, employment status etc. are all retained when employer and employee sign the TUPE agreement.  However in many instances (and from your second post, this applies in your case also!) prospects of continance and/or advancement are affected.  My understanding at this stage (we've been struggling with all these issues for the past three years.....blinkin' nightmare!) is that _if there is good reason to believe the TUPE will materially affect continuance or advancement_  (in other words, the new outfit are not up to it and though your job 'transfers' you will not get promotions, continuing training, the kinds of salary increments you would were you to continue in post with current firm etc., etc.) then you 'have a case'.  Again, that needs to be established and you would need to consult a solicitor competent in employment legislation, EU guidelines etc. and also the perspective of your union if you are a member.

Giving employees whose jobs and rights are directly affected by restructuring, merger etc. that if they don't like it they can go elsewhere borders on intimidation but employers these days are trying this as many employees don't check out their rights in this area.


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## RainyDay (26 Dec 2006)

J.P. said:


> The reason I plan to leave is that the new company has a very poor track record & in addition it has no knowledge / prior experience  of the business they are purchasing.
> The role I currently occupy, the same role is on offer to me by the new company, same location, terms, etc...., for the moment the role will not be substantively changed.


I'm not trying to step on your toes, but wouldn't you be better off staying with the new employer until you find new employment? Are you cutting off your nose to spite your face?


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