TUPE - Employee question

Discussion in 'Finance, Property, Law' started by BigGSheff, Aug 24, 2010.

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  1. Good evening all, having a few issues at work having been TUPE'd.

    I would like to know whether the following are correct:

    We were required to fill out complete application forms for the new company, including asking for references and for us to provide a p45 from the company we were transferring from.

    Our tax codes were all changed to BR until the p45s had been sent in, some of us are still on a week 1 tax code.

    Asking for us to provide proof or eligibility to work in the UK.

    We are getting quite annoyed with being asked for all this when as far as we understood it the TUPE process shouldn't have affected us at all.
  2. Yeah, didn't really answer my questions, seems more employer based so I started this one to be employee based. Although I understand some of the replies in the other thread are relevant, it's difficult to understand a lot of it when you are only a small cog in the big machine.
  3. Since I have an MCIPD working late this evening I asked her to have a look at your post, the above was her reply.

    TUPE is more about ensuring you still have employment than ensuring the handover is smooth. The Law says that an employer is responsible for ensuring that all their employees are entitled to live and work in this country and the penalties are harsh if you employ someone who isn't entitled to be employed here. I wouldn't rely on any other firm's word that all is well and neither does anyone else. I don't know any employer who will take on new staff without checking eligibility first.

    PS If she bills me for this you owe me a pint. ^~
  4. That you should be required to engage in such exercise is curious in the extreme.

    Regulation 11 TUPE 2006 imposes an absolute duty on the old employer (the transferror) to provide the new employer (the transferee) with information on employees subject to transfer. This information is to be given not less than fourteen days prior to the transfer, or, as soon as possible thereafter if that deadline is not reasonably practicable (Regulation 11(6)). Note in particular the provision of Regulation 11(2)(b) (in the link provided) since it requires that in addition to the employee information which must be given under Regulation 11, it also requires the transferor to give employee particulars that are contained within section 1 Employment Rights Act 1996, which, when you look at s1 ERA, (on the link I have provided), includes virtually everything you are being asked to complete!

    The absolute duty of the transferor to comply with his obligations under Regulation 11 TUPE 2006 is underlined and reinforced by sanctions under Regulation 12(1) and 12(3) of the 2006 Regulations. These may be imposed by a tribunal at the suit of the transferee which may well amount to a minimum amount of compensation of £500,00 per affected employee under Regulation 12(5). Note, that this is a minimum amount. There is no maximum. This exposes the defaulting transferor to a potentially unlimited amount of money by reason of his default in his obligations. In other words, unless the old employer pulls his finger out, he may find himself expensively out of pocket having been sued by the new employer either under Regulation 12 or by enforcing an indemnity agreement incorporated within the service agreement itself under which the transferor agrees to indemnify the transferee for losses incurred by the latter attributable to non-compliance or incomplete compliance with the former's obligations under TUPE 2006.

    You are under no positive obligation to complete anything at all in relation to the new employer that you were not required to complete with your old one and you should avoid doing so. The new employer simply steps into the shoes of the old one. If your new employer inherits 'illegals' from the old one, the potentially unlimited damages available to your new employer in exercising his prerogative to invoke Regulation 12(5) compensates him for his loss!

    The 2006 Regulations are crystal clear. They are publically available on the internet. There is a plethora of advice on their application from a myriad of sources. If your new employer is having to ask you to complete such paper-work or has failed to avail himself of the incentive of Regulation 12, or both, then his crass stupidity is as culpable as the casual negligence of your previous employer in creating a state of affairs which clear and precise legislation was designed to avoid. Regulation 11 was designed to provide a smooth and seamless transition from one employer to another and Regulation 12 was designed to sanction those who failed to apply the provisions designed to effectuate it.

    Employers are quick to complain of the burden of regulation originating from the European Union. What a pity they do not take the time to read the bloody things!