# Company Outsourcing - TUPE - Transfer of undertakings (2008)



## beeline (26 Aug 2008)

Our American Company with an Irish base is currently in the process of Outsourcing a specific internal group to an external third party who are very well rehearsed in these matters. We have been informed that our options are:

(1) to move to the external company as our new employer 
-or-
(2) be retained by the company in our existing role. (which is not really viable, considering this is an outsourcing project).

There is no option for Redundancy for impacted employees who do not wish to transfer across under the terms of outsourcing.

This Irish outsourcing project has been confirmed as invoking TUPE regulations (transfer of undertakings,protection of employees) - based on S.I No. 131/2003 - European Communities (Protection of Employees on Transfer of undertakings) Regulations 2003 (as dictated by Irish Statute Law).

My question relates to the position of redundancy in this transfer.

My contract is with Company A and soon I'm being told to move and work for Company B. Is there a fine line in between where my contract with Company A is broken by the the Company (hence Redundancy) before I agree/disagree to move to Company B.The job function is the same, but obviously different employers going forward.

I've seen another thread on this forum about TUPE , but it was from 2004 and is out of date, and I'm wondering if anyone in the last 12 months has come up against any improvement in the Irish Legislation that protects Employees in this situation that may not want to move to Company B and at the moment are faced with leaving Company A (possibly on the grounds of unfair dismissal - by being seen to not want to move to Company B), and basically are going to be left empty handed.I have six years service in the company.I'm not interested in knowing here about employee rights being carried across - that part is clear and what benefits are there by law to protect impacted employees, but the legal options for employees and Redundancy payments who do not wish to transfer is unclear at this time.
Has this ever been challenged?


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## Mpsox (26 Aug 2008)

You're been given 2 options here, to join the new company with the retention of your service from the original company or to stay in your existing role with your current employers. 
Whilst I accept that your current role, if you stay, in reality may change in time, the reality is also that your current employer is offering you the chance to stay. If we assume your current T&Cs won't change if you stay with your existing employer, on what grounds do you think you are being made redundant?


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## Purple (26 Aug 2008)

Mpsox said:


> You're been given 2 options here, to join the new company with the retention of your service from the original company or to stay in your existing role with your current employers.
> Whilst I accept that your current role, if you stay, in reality may change in time, the reality is also that your current employer is offering you the chance to stay. If we assume your current T&Cs won't change if you stay with your existing employer, on what grounds do you think you are being made redundant?


That's what I was thinking.


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## beeline (26 Aug 2008)

Hello, thanks for the info so far.
just to clarify - the options so far are only a proposal, we don't have any choice at this moment in time to stay or go. Final employee impacts are still being finalised and will not be sent out for a few weeks, so assuming being retained by the current employer is only a wildcard and will not be used, our option thats left on the table is move over to the new employer.....or leave.

On these grounds that we "must" move over, if we don't want to go, and
the company does not give us any other option but to leave the company...thats where the redundancy card comes in at that point and I'm trying to see if its valid or not. thanks.


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## Danoli (26 Aug 2008)

If you are being given the option of staying in your current job in the same company, then you are not being made redundant. Can you explain some more about this please? It sounds strange.

If you are being told that you must transfer, and that there is no role for you in the current company, then that is totally different.


It has never been challenged before because companies undertaking a transer have always reached agreement with their employees beforehand in an amicable manner.

In summary, if you are being given the option of retaining your own job with your current company then there is no way you could be deemed to be redundant. However, if you are being told you must transfer or you have no job, then you can challenge this for sure now.


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## csirl (27 Aug 2008)

My understanding of TUPE is that redundancy can only occur if the job ceases to exist.

In this case, as in most TUPEs, the job is transferring to a new "owner", but it still exists with the same terms and conditions etc. i.e. the employee is not losing out, so it is not a redundancy situation.

If you are unwilling to transfer to the new company under the same contract of employment, then it is regarded as a resignation rather than redundancy and the original employer is under no obligation to retain you if they do not have a position for you (though many will because they want to retain valuable employees).


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