# TUPE-Does new company have to take us or can it pick and choose who to take?



## dmca (6 May 2009)

Hi,

I work for a big company, and the job I do is been takin over by a new company next month which affects app 20 staff.

My current company tells us that we are going to be tupe'd accross to the new company, but we have heard from the new company that they are employing new staff and are not taking us.

Does anybody know the rules of tupe? Does the new company definitely have to take us or is there any way they dont have to take us?


----------



## ajapale (6 May 2009)

Hi dmca,

Im moving your post to  Work, Careers, employment as this is where Transfer of Undertakings Protection of Employees (TUPE) and employee rights have been discussed in the past. Search for TUPE and you will get plenty hits.

My understanding of TUPE is that the new company has to respect the Terms and conditions in force at the old company (except pension arrangements). The terms and conditions at the new company can be varied by negotiation between the new company and the the employees.

Its a few years now since I was involved with TUPE when I was working for the new company. In practice we decided who we wanted and didnt want before we bought the company. It was up to the old company to offer redundancy to the people we didnt want. We then respected the Terms and Conditions of the transferred employees to the letter. After about a year Ts and Cs were renegotiated to bring them into line with the new company.

Are you in a trade union? 



aj


----------



## dmca (6 May 2009)

Thanks aj, 

ye we're in a trade union but our representative is not very good at giving us information


----------



## MandaC (7 May 2009)

Was in a situation this time last year whereby we were going to be absorbed into a bigger company by being Tupe'd.

It is up to the old company to offer redundancy prior to the takeover if you are not moving over as part of the process.

Even though they wanted me to move I took the redundancy package as the new location did not suit me


----------



## dmca (7 May 2009)

Both the company im in now and the new company are in the same place.

my current employer isnt offering redundancy, is this wrong?


----------



## ajapale (7 May 2009)

dmca said:


> Both the company im in now and the new company are in the same place.



This would be the usual practice. Indeed if you had to move then this would be a variation of your TandC's. In the circumstances where you were physically moving from one site to another it would be up to the old company to arrange the move before the new company bought the old company / section of the old company.



dmca said:


> my current employer isnt offering redundancy, is this wrong?



The old company must pay statutory redundancy if it is letting go employees. In some cases the old company will negotiate somewhat better terms for employees who are leaving to ease the sale of the company.


I must state here that my experience with TUPE is somewhat dated and related to traditional industries. I am aware that certain parts of the financial services industry and the IT industries are pushing the envelope out in terms of how the TUPE legislation is interpreted and applied. Generally in the past and in the traditional industries TUPE genuinely protected the employee but I note a tone of dread among employees in the new technology sectors who are facing being TUPEd.


----------



## MandaC (7 May 2009)

No, employees still have their rights. 


Has your current employer stated the position.  At the minute you are being moved over to new employer?  So what exactly does the new employer want you to do.  Is it heresay that you are not wanted in the new company?


 I would recommend that you have a consultation with a solicitor specialising in employment law.  May cost you a couple of hundred euro, but will be the best money ever spent.  Get all your facts and figures together before you do so.


----------



## Deiseblue (9 May 2009)

dmca said:


> Thanks aj,
> 
> ye we're in a trade union but our representative is not very good at giving us information


If you are not satisfied with your rep's response take it to the next level, contact the paid Union employee who deals with your area.


----------



## ajapale (9 May 2009)

The old company has an obligation under the legislation to consult and communicate with the employees.

Transfer of business-Information from CitizensInformation.ie 



> *Consultation*
> 
> The Employees (Provision of Information and Consultation) Act 2006 (pdf) provides a general right to information and consultation for employees from their employer on matters which directly affect them. The legislation requires employers to inform and consult employees on any decisions likely to lead to substantial changes in work organisation or contractual relations – with particular reference to mergers and acquisitions and to collective redundancies. This means that employers are required to consult with employees before major decisions are made, including transfer of business. Since 23 March 2008 it applies to employers with at least 50 employees.
> Under the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 employees (including those who are not covered by the Act as they are working for an employer with fewer than 50 employees) must be given details of the transfer as follows:
> ...


----------



## guido (28 Oct 2022)

ajapale said:


> This would be the usual practice. Indeed if you had to move then this would be a variation of your TandC's. In the circumstances where you were physically moving from one site to another it would be up to the old company to arrange the move before the new company bought the old company / section of the old company.
> 
> 
> 
> ...





ajapale said:


> This would be the usual practice. Indeed if you had to move then this would be a variation of your TandC's. In the circumstances where you were physically moving from one site to another it would be up to the old company to arrange the move before the new company bought the old company / section of the old company.
> 
> 
> 
> ...


Hello, responding to this thread many years later from the original posts! Not involved in TUPE yet but could very well be in the near future
My question is as follows, if you refuse to be TUPE'ed....is it still the case that Statutory Redundancy is all that is offered?  Or is the existing company's redundancy package offered? I suppose it's a question of what they are obliged to do versus what they will do....I take it if you do move, that you are under the new company's redundancy terms? Also re the pension, that the existing company pension is frozen with a new pension offered by the new company? Thanks for any advice


----------



## Clamball (28 Oct 2022)

If you decline to move to the new company and are offered redundancy by your current company they may face a lot of scrutiny if they don’t offer you the current redundancy scheme.   They can of course shut the current redundancy scheme and start offering the tupe movers a lesser package until the move has taken place.


----------



## Salvadore (28 Oct 2022)

The TUPE provisions provide that you’re entitled to the same conditions in the new company as you were in its previous incarnation.

If your job is not under threat when your current company is being ‘TUPEd’ then no redundancy situation arises. It’s only if the new company is looking to cull staff. I recently heard of a case where an employee was quite looking forward to his redundancy package, only to be told that he was actually being kept on.

Normally in redundancy situations in TUPE are quite generous in the interest of avoiding conflict.


----------



## guido (1 Nov 2022)

Clamball said:


> If you decline to move to the new company and are offered redundancy by your current company they may face a lot of scrutiny if they don’t offer you the current redundancy scheme.   They can of course shut the current redundancy scheme and start offering the tupe movers a lesser package until the move has taken place.


Thanks Clamball - good to hear that.  It would be a portion (only a Dept) of the company so I think that they would have to adhere to the "overall" - existing scheme?  Thanks for the reply....


----------



## Peanuts20 (1 Nov 2022)

For clarity, if TUPE applies and you refuse to move, you are deemed to have resigned and your employer has no obligations towards you for any redundancy package. That has been confirmed in the WRC and the Labour Court many years ago.

Not all of your T&C's transfer over if you do move, Pensions being a case in point.


----------



## guido (1 Nov 2022)

Peanuts20 said:


> For clarity, if TUPE applies and you refuse to move, you are deemed to have resigned and your employer has no obligations towards you for any redundancy package. That has been confirmed in the WRC and the Labour Court many years ago.
> 
> Not all of your T&C's transfer over if you do move, Pensions being a case in point.


Ok thanks Peanuts....I thought that was the case originally and then thought I saw on one of the posts that Statutory Redundancy might apply - OK so nothing at all if you refuse to move? ; or discretionary depending on employer? thanks again


----------

