TUPE Law

[Ricko]

Good morning.

I am new to the forum and have a request about the above. Can anyone point me in the direction for some advise.

We are a small company who have had to let people go due to lack of work and have now been advised that they may be entitled to redundancy pay from a previous company that went into Liquidation last year.

Regards Richard.

 

[Employment Law Clinic]

Hi Ricko,

What exactly happened? Did these staff transfer to your company, or were they made redundant from the old company before you hired them? TUPE law for liquidations can be complicated, so a lot of detail would be needed to point you in the right direction.



Karl Limpert

 

[Ricko]

Hi Karl.

Thanks for the prompt reply.

It is quite complicated and wasn't too sure if it is ok to post the full sordid details on here?

Richard.

 

[Rhodes100]

Without details no one can answer your question.

You mentioned a previous company that went into liquidation last year. Did you set up a phoenix company, because if you did to avoid paying the debts but carried on trading with the same premises, phone number etc you could have a much greater problem than redundancy under TUPE.

 

[sjbeale]

I would be happy to advise if you pm or email me [email protected]

 

[Ricko]

Sorry for the delay in replying. I have been running around like the proverbial trying to drum up business.

This is what happened.

I had been running a business for over 15 years and had no idea what was about to hit us when the Banking crisis hit, like many others. We had been working for many years as one of the principal suppliers to many of the high street banks and was well respected throughout the UK.

I tried to ride out the storm right up to early 2010 when things just didn't get any better and I had run out of personel assets and money to plough back into the business to keep it going. Crown pressures etc. just got the better of me and I had to submit and give in.

The company went into liquidation and after talks with our customers it looked like things would change and they had agreed to support us throughout the changes.

I wanted desprately to try and get through this and told my staff what was happening and the fact that my son was going to start a new company with a view to getting some work for everyone in the hope that we would could get back to some sort of normality!!

My son is the sole director of the new company as I haven't been able to settle my affairs yet and still have a noose around my neck.

I have been trying to drum up business and it just hasn't materialised even though there have been promises after promises and umteen carrotts dangled.

It got to a point where there just wasn't any more money in the pot to pay the lads and we had to let them go.

I am totally gutted about the situation and got very upset when we had to let them go. One chap in particular had been with me in the first business for 16 years. All be it he had his moments where he had warnings and threats of the sack, He still stuck with us and was told last year when the old company went into liquidation the it was beyond my control and I could not carry on with the company and if he wished to he could work for my son's new company in the hope that things would pick up.

I think that's about it.

Help!!

Richard.

 

[lovingthesurf]

When the first company went into liquidation the staff should have filled in a RP1 form , they would have been able to claim any redundancy , holiday pay , lieu of notice and outstanding wages direct from the government . The insolvency practioner should have advised you of this initially ? You ( or your son ) could then have chosen to recruit what staff you wanted from the old company on totally new contracts .
The new company chose to take on the existing staff and therefore took on all the back dated holiday / redundancy etc ..under the TUPE rule.
If you choose to liquidate the new company , then I am fairly sure your staff will be able to still claim full redundancy etc that they are due direct from the government using the RP1 form that your Insolvency practioner will provide to them .
I know it is hard to swallow but letting staff go is hard but you must remember that you are in business for yourself and not your staff . If you have earnt nothing in a year ( or even lost money ) then your staff are earning more than you , so you would better off on the dole .

 

[Employment Law Clinic]

It doesn't appear to be a TUPE transfer, in which case the ex-employees would have a claim for redundancy either from the old company or the government.



Karl Limpert

 

[Ricko]

Karl.

Thanks for that.

It is not me trying to get away without paying him, I would much rather we had still got the work to employ them.

I have to make a representation to ACAS who have asked the question about TUPE law and asked me to get some advice. I had never heard of this before.

Richard.

 

[Employment Law Clinic]

I have to make a representation to ACAS who have asked the question about TUPE law and asked me to get some advice. I had never heard of this before.

Richard.

Hi Richard,

I don't understand why you would need to make representations to ACAS at all. If an ex-employee made a claim against the new company, it would be for a tribunal to determine whether there was a TUPE transfer, but as it appears there was no clear entity that transferred from your company to your son's company, I can't see how it could be a TUPE transfer.



Karl Limpert

 

[Ricko]

Good morning all.

Well, I attended the tribunal yesterday in Birmingham.
Not a good day as we have lost the case and the employer was granted judgement against the new company for all his redundancy pay and notice pay along with some holiday pay!

What next?

Give me a hammer and I will knock the last nails in the coffin myself!

richard.

 

[Alan R Price]

Ricko

As an insolvency practitioner I can't see how there was a TUPE transfer because liquidation usually exempts it. My recommendation is that you seek advice immediately from a specialist employment lawyer with a view to an appeal. I get the impression you have tried to deal with this yourself until now, which appears not to have worked. Apologies if I am incorrect.