TUPE redundancies

Submitted by Bertie on Mon, 03/10/2011 - 09:05

Hi

I am anticpating a TUPE transfer for 3 of my staff into another organisation as the service will be contracted out. The other company has however indicated that they will only be accepting 2 people and have asked me to make 1 redundant. Can you confirm if this is right and what my next steps should be?/

Thanks

B

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Comments

Hi B There are 2 things

Submitted by RHHRAdvice on Mon, 03/10/2011 - 09:19.

Hi B

There are 2 things here:

Firstly, that where TUPE applies the organisation tranferring in, must accept all staff currently under that service unless they accept a role elsewhere within your business (i.e job change before transfer) or they resign.

Secondly, neither the new employer (the transferee) nor the previous one (the transferor) may fairly dismiss an employee:–

-because of the transfer itself; or
-for a reason connected with the transfer, unless that reason is an "economic, technical or organisational (ETO) reason entailing changes in the workforce."

If there is such a reason, and it is the cause or main cause of the dismissal, the dismissal will be fair as long as an employment tribunal decides that:

-the employer acted reasonably in the circumstances in treating that reason as sufficient to justify dismissal; and
-the employer met the other requirements of the general law on unfair dismissal.

If there is a need for redundancy following a transfer then it is the Transferee's responsibility to manage the redundancy consultation and make any necesary payments. Generally employees who transfer are protected from redundancy under the TUPE regulations and any usch dismissal would be deemed unfair by an Employment Tribunal.

I hope this helps

RHHR Advisor