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Jason

T U P E - Understanding When It Applies

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Hi all, just after some advise if Tupe applies if the company I work for wins some business. I don't want to mention names, but I will give an example:

FarmerA grows fruit and package it.

Company1 puts a BBE sticker on it and sells it to CustomerZ

Company1 has lots of other farmers/suppliers and customers. They also have their own warehouse space in the UK.

Company2 wins the contract from FarmerA, puts a BBE sticker on it, and sells it to CustomerZ

Company2 has lots of other farmers/suppliers and customers. They also have their own warehouse space in the UK in no way connected to Company1 in a different part of the country.

If Company2 won the contract, would they have to offer jobs to the employees who were employed by Company1?

This has just come about by FarmerA asking us how we will deal with TUPE (well, their in-house HR department). I think it has nothing to do with Tupe, and we haven't even considered this. I would say the people in Company1 are not exclusively employed to do that particular job - although I would never know if this is the case.

Is this just HR people just being silly, or is this something that *may* apply. Clearly the actual business is not a small farmer, but a large company, but it's the same scenario.

I have read the interweb, and I'm still unclear (I'm not expert).

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If as a result of winning a contract to provide a service that another company is currently contracted to provide, and you intend to use the other company's staff to provide it, moving them to your company, then TUPE will apply.

They may, if they wish, bring their current Ts & Cs and employer policies with them, which will apply in perpetuity, or may individually or collectively choose to move to your Ts & Cs, policies, etc. ACAS has good advice on their site.

Edit: punctuation!

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If as a result of winning a contract to provide a service that another company is currently contracted to provide, and you intend to use the other company's staff to provide it,

We wouldn't want to use their staff, we would use our own staff - and recruit as necessary.

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Why would Company2 HAVE to employ the people in Company1? Company2 could just use their own employees or subcontract to Company3. Company1 just needs to win a contract to do some other work. If Company2 took over Company1 or took over their employees then TUPE would I believe apply.

Well, this is what I think.

It's just some HR bod has given their piece about how we intend to tupe employees of Company1. No one at our company thought about this, and we all looked stupid.

I think it's just HR in the supplying company trying to justify their existence.

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I saw this in wiki which is a bit worrying....

Indeed. I think the main issue is if they were working exclusively on a particular contract.

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I've been tupe'd from one part of a company (dept1), to another part (dept2) - they effectively came under the same umbrella company.. My terms and conditions stayed the same - for instance, existing original employees within dept1 had fixed hours, whereas dept2 had flexi time - something that I kept. Of course, they could have made my position redundant, but open up another position, which is similar but different, but on their t&c's..

As my position in dept2 no longer existed, from what I remember, if I hadn't tupe'd across, I would have lost my job. The management of dept1 had no idea when it came to contract negotiations, whereas my old IT manager boss (main manager of dept2) had the support contract nailed down so much, that dept1 actually missed out two employees, who were critical to the IT function, and had no idea they existed..

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Yes TUPE would apply but the "economic, technical or organisational" reasons are far reaching and pretty much all encompassing.

If they don't want you they simply have to produce a good argument as to convince an employment tribunal (or ACAS as independent arbiters) as to why not.

I have been out of the game for 8 years now so am unaware of any case law which clarifies these positions.

If you are worried look to join a trade union now and before the transfer takes place. They will advise and start the legals off if you have a good case...... Be aware that even if you win unless you have a lot of service under your belt it may not be worth much anyway..

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