Does TUPE Apply Across the EU?

Discussion in 'Legal' started by DaveSmith, Dec 5, 2012.

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  1. DaveSmith

    DaveSmith UKBF Newcomer Free Member

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    Can you please tell me if TUPE exists if the tender for a contract is won by a Spanish company. Myself and two colleagues have worked for a UK company for 10 years providing an international service to cycling races. Last month this work was put out to tender and the bid was won by a Spanish Company who will provide the same service on a 3 year contract. My current company cannot exist without this contract so will cease to exist in the next few weeks. Can you please tell me if my position, which will still exist, will transfer to the Spanish Company. Can you explain how this would work ie. although the work takes place in a number of countries across the world, with travel making up 5 months of the year, the Head Office will be based in Spain. Will I be expected to relocate to Spain, will I be made redundant - if so who will be liable for my redundancy, will I be entitled to obtain loss of earnings ? NB: The Spanish company already has a workforce of 60+ staff.

    The company that is folding is only one of many owned by my current employer, he has told us that he cannot make us redundant as we are now employed by the Spanish company who won the bid.

    He has also told us that he will give us a gratius payment if we object to being TUPE'd across.

    He has told us that the Spanish company are refusing to answer his correspondence regarding TUPE of the three staff.

    We have been given a finish date of 31st December.

    Many thanks in advance for any advice you can offer.
     
    Last edited: Dec 5, 2012
    Posted: Dec 5, 2012 By: DaveSmith Member since: Dec 5, 2012
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  2. TotallySport

    TotallySport UKBF Legend Full Member - Verified Business

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    The spanish company and your company are not linked in any way except they went for the same tender.

    Therefore your employment is only linked to your current company and all responsibilities fall firmly at their door.
     
    Posted: Dec 5, 2012 By: TotallySport Member since: Jul 18, 2007
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  3. TotallySport

    TotallySport UKBF Legend Full Member - Verified Business

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    I recommend you ring acas first thing in the morning, as you have just missed them.
     
    Posted: Dec 5, 2012 By: TotallySport Member since: Jul 18, 2007
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  4. DaveSmith

    DaveSmith UKBF Newcomer Free Member

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    We rang ACAS earlier and the person we spoke to was very helpful, but did not know a lot about TUPE. She did however say that any dismissal under TUPE would count as unfair dismissal. Also had a quick phone conversation with a solicitor who again said was happening was wrong, but again was no expert.

    I was of the opinion that the persons employed to carry out the work on the contract would automatically slot over to the new company under the TUPE rules.

    I am wondering if it was down to the organisation who wrote the tender, should they have included in the tender the responsibility for 3 x full time staff.

    Any opinions, thoughts and replies will be gratefully received.
     
    Posted: Dec 5, 2012 By: DaveSmith Member since: Dec 5, 2012
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  5. TotallySport

    TotallySport UKBF Legend Full Member - Verified Business

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    lets put it another way, a product company wins a contract to produce a program for ITV, 3 years later the contract runs out, and the contract goes out to tender again, and a different company wins it.

    The second company has nothing to do with the first, the second company has no obligation to even phone the first company, let alone take on their staff.

    A company should make sure they are not reliant on one supplier and if they are, and things go wrong, generally the company goes wrong.

    I am no legal expert so you need to ring acas back, or pay a lawyer and get the right information.

    I am writing this on the assumption that the spanish company is not something like the head office of your company, or previously linked in any way.
     
    Last edited: Dec 5, 2012
    Posted: Dec 5, 2012 By: TotallySport Member since: Jul 18, 2007
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  6. DaveSmith

    DaveSmith UKBF Newcomer Free Member

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    Thank you for all the advice you are giving me.

    No the new company is nothing to do with my existing company.

    Where my wife works the catering contract goes out for tender every two years, if a different company wins the contract then all existing staff are automatically TUPE'd over to the new company as their roles still exist within the new organisation, this has happened on 5 or 6 occasions. I believed that this was correct procedure for any tender of work process, if the role still exists then the current staff automatically move over.

    My boss has acknowledged that this is what should happen, but is struggling to get any response from the Spanish company.
     
    Posted: Dec 5, 2012 By: DaveSmith Member since: Dec 5, 2012
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  7. TotallySport

    TotallySport UKBF Legend Full Member - Verified Business

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    There might be information in the tenders contract, but that won't happen in every industry.

    Your role still exists in your current company, its your company that can't afford to keep you.

    Also TUPE doens't exist in Spain, so I doubt they will be bothered about you.

    I personally think your employer is feeding you a line, and you need to get more information from a reliable source.

    Sorry I can't help more but I am no expert, and there are alot of ifs and buts.

    Good luck.
     
    Posted: Dec 5, 2012 By: TotallySport Member since: Jul 18, 2007
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  8. kelvin1950

    kelvin1950 UKBF Ace Free Member

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    My experience of this whilst working in a large corporate is that the TUPE will only happen if the tender document details that that's what the client wants. Ours always used to do so but AFAIK, it's not mandatory under a tender situation.
     
    Posted: Dec 5, 2012 By: kelvin1950 Member since: Jul 19, 2011
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  9. sjbeale

    sjbeale UKBF Ace Full Member

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    TUPE may apply to contracts that are being outsourced outside of the UK but caselaw has yet to determine the precise details of this. In any case the legal logistics can be difficult.

    Your current employer has a legal duty to inform and consult with you regarding the TUPE situation. If they fail to do so you can make an employment tribunal claim for an award of up to 13 weeks pay.

    The potential new employer has an obligation as well to consult with you to answer all your questions. Pursing them for failing to fulfil these obligations will be difficult as you can not pursue them in a UK employment tribunal for compensation.

    If you are made redundant by your current employer they must show that it is for an economic, technological or economic reason. If they can't then you can claim an unfair dismissal payment.

    As you say your current company will fail to exist when they lose the contract you could pursue in an employment tribunal but if the company has closed down you could only receive monies from the Insolvency Fund and receive a very bare minimum redundancy payment.
     
    Posted: Dec 6, 2012 By: sjbeale Member since: Jul 8, 2005
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  10. Newchodge

    Newchodge UKBF Big Shot Free Member

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    The starting point to decide if TUPE applies is to identify the undertaking that is being transferred. Is there a transfer of equipment, customers and staff?

    From the sound of it, what is being transferred here is the provision of a service, which is a tricky area. Domestic law has been amended to specify the transfer of a service provision as coming under TUPE however european law has no such provision.

    It is a complicated area and you and your employer need to seek specialist advice. ACAS will be unlikely to be able to help.

    If TUPE applies the Spanish company is responsible for your continued employment and any compensation for loss of office etc. If TUPE does not apply your current employer is liable.
     
    Posted: Dec 8, 2012 By: Newchodge Member since: Nov 8, 2012
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  11. Steve Sellers

    Steve Sellers UKBF Big Shot Full Member - Verified Business

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    Yes they do.

    The most obvious place to start is the regulations:

    (4) Subject to paragraph (1), these Regulations apply to—

    (a)public and private undertakings engaged in economic activities whether or not they are operating for gain;
    (b)a transfer or service provision change howsoever effected notwithstanding—

    (i)that the transfer of an undertaking, business or part of an undertaking or business is governed or effected by the law of a country or territory outside the United Kingdom or that the service provision change is governed or effected by the law of a country or territory outside Great Britain;
    (ii)that the employment of persons employed in the undertaking, business or part transferred or, in the case of a service provision change, persons employed in the organised grouping of employees, is governed by any such law;
    (c)a transfer of an undertaking, business or part of an undertaking or business (which may also be a service provision change) where persons employed in the undertaking, business or part transferred ordinarily work outside the United Kingdom.

    ----------------------------------------------------

    Newchodge - EU law does have such provision, TUPE stems from EU law.

    Transfers of Undertakings Directive 2001/23/EC
     
    Posted: Dec 8, 2012 By: Steve Sellers Member since: Aug 7, 2011
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  12. Newchodge

    Newchodge UKBF Big Shot Free Member

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    Steve

    I was relying on this element of the judgment in McCarrick v Hunter (2012)


    1. The TUPE Regulations are designed to protect employees caught up in the transfer of the business to whom they provide their services. When there is a transfer of an undertaking or part of an undertaking from one employer to another as defined in the regulations, the employees working in the undertaking are automatically transferred to the new owner, the transferee, together with their contracts of employment. Any dismissal connected with the transfer is automatically unfair (at least for those eligible to claim unfair dismissal) save where the employer can show an economic, technical or organisational reason entailing a change in the workforce.
    2. The regulations are intended primarily to give effect to the European Directive known as the Acquired Rights Directive, the current version of which is Council Directive 2001/23/EC. In so far as the regulations are the domestic implementation of the Directive, they must be construed purposively to give effect to the aims of the Directive, even where this may involve some departure from the strict and literal application of their language: Litster v Forth Dry Dock and Engineering Co Ltd [1989] ICR 341 (HL).
    3. However, the domestic regulations were altered in 2006 to extend protection even where there might be no transfer of an undertaking or part of an undertaking. Identical protection to that afforded to employees on transfers of an undertaking was extended by regulation 3(1)(b) to employees caught up in a situation where there is a change of service provision. This has no equivalent in the Directive. It applies where a client contracts out a service, or takes it back in-house, or transfers the service from one provider to another. Employees assigned to the service transferred will become employed by the new employer providing that service. In a case where the service is brought back in-house that will be the client itself. The concepts of an undertaking and a service provision are not mutually exclusive: many transfers of a service provision will also constitute a transfer of an undertaking, but this will not necessarily be the case.
     
    Posted: Dec 8, 2012 By: Newchodge Member since: Nov 8, 2012
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  13. Steve Sellers

    Steve Sellers UKBF Big Shot Full Member - Verified Business

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    You are referring to one point. The question was to all. That particular point is of no relevance whatsoever.

    Read the regulations I posted again. Dear me.
     
    Posted: Dec 8, 2012 By: Steve Sellers Member since: Aug 7, 2011
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  14. Alan R Price

    Alan R Price UKBF Newcomer Free Member

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    Aren't we in danger of not seeing the wood for the trees here? OP's employment contract is with his current employer. That employer has lost a customer, it has not transferred its business to a third party. Why should TUPE apply?

    Or am I being a bit simple?
     
    Posted: Dec 10, 2012 By: Alan R Price Member since: Jul 5, 2010
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  15. Steve Sellers

    Steve Sellers UKBF Big Shot Full Member - Verified Business

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    No Alan, the conversation has somewhat transgressed and become convoluted.
     
    Posted: Dec 10, 2012 By: Steve Sellers Member since: Aug 7, 2011
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  16. Alan R Price

    Alan R Price UKBF Newcomer Free Member

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    I thought so, Steve, thanks. It just seemed to me that nobody had actually given a simple answer to the original query!
     
    Posted: Dec 10, 2012 By: Alan R Price Member since: Jul 5, 2010
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  17. Steve Sellers

    Steve Sellers UKBF Big Shot Full Member - Verified Business

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    Fairly simple Alan ^^^. Although the rest isn't.

    If there isn't a simple answer given that is because there isn't a simple answer to give. ;):)
     
    Posted: Dec 10, 2012 By: Steve Sellers Member since: Aug 7, 2011
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