Transfer of Employee, Non-TUPE?

C

csirl

Registered User
Messages
2,162
A friend of mine has lodged a claim for unfair dismissal.

To date he's representing himself (which I think is a big mistake, but he won't listen) and has actually succeeded in winning a preliminary hearing on a number of issues including that his dismissal was unfair - his ex-employer did not hold a hearing & give reasons etc. just told him he was fired.

A final hearing on the case has been scheduled and the defence being put up is that he was employed for less than 12 months and so is not eligible for any compensation.

Here's the situation. Large corporation "X" subcontracts work to a number of firms including "A" and "B". Employees of A and B work in offices belonging to X and provide customer services to X's customers but are actually employees of either A or B.

My friend - worked as a full time employee for "A" up until about 4 months before his dismissal. He worked in an office that included employees of both A and B. 4 months ago he turned up for work and was told by his day to day supervisor (who is employed by X) that the management of companies A and B have agreed to transfer him from A to B. At the time, he didn't give it a second thought - employees of each did same job for same pay etc. The only thing that changed was the name of the employer on the top of his payslip. He was not asked for his consent, just told that he was an employee of B from a certain date.

After 4 months as an employee of B, he was dismissed and replaced by a close relative of the owner of company B. His best guess is that he was singled out for dismissal (as owners relative needed a job) as he was the only employee at that location who was employed by B for less than 12 months and so the owner figured he was immune from an unfair dismissal claim.

There isn't any documentary evidence of the transfer apart from payslips and tax records - everything was done verbally - and no new contract of employment was issued at the time of the transfer.

How is such a transfer regarded in employment law and can he claim continuous employment for more than 1 year?
 
Firstly he was an idiot not to get something like this in writing, but how and ever

TUPE is usually used to cover off issues around takeover/sale of companies and the impact it has on staff or where a company outsourced an operation, and it's staff, to an other company. In such situations, length of service carries over, so for example, I was outsourced by my employer in 2004 with 4 years service, I was deemed to have worked for my new employer for 4 years from the day of transfer(and indeed got a 5 year long service award a year later). Consent in such cases is often not required either.

You don't indicate if there were any other reasons for the dismissal, eg gross misconduct?
 
Firstly he was an idiot not to get something like this in writing, but how and ever
Click to expand...

Fully agree, but nothing he can do about this now.

No reasons given for dismissal at the time of the dismissal - he was just told that his services were no longer required etc. and that due to his shortness of his tenure (with B) they are entitled to let him go without reason. There were no disciplinary issues during his time at either A or B. However, at the prelim hearing, B started claiming that his performance was not up to scratch, but could not give any details or back up the statement. The prelim hearing determined that the dismissal was in fact unfair and that there is no proof of poor performance - nothing recorded in his personnel file/assessments. The only question outstanding, to be determined by another hearing, is whether or not he has enough service to claim the unfair dismissal compensation.
 
He needs to go to a solicitor and find out (in writing) if his transfer was covered by TUPE. If it was he's in a strong position. If it wasn't he's screwed.
 
csirl said:
There isnt any documentary evidence of the transfer apart from payslips and tax records - everything was done verbally - and no new contract of employment was issued at the time of the transfer.
Click to expand...

What does old contract of employment state ?? technically he is still employed by them if no paperwork.

I agree with Purple, tell him to talk to Industrial relatoions solicitor.
 
What does old contract of employment state ?? technically he is still employed by them if no paperwork.
Click to expand...

No paperwork. Neither company provided written contract of employment. Only records of employment are payslips, P60s, P45s etc. They admitted this at prelim hearing and are prepared to take the consequences (small fine I assume).

I agree with Purple, tell him to talk to Industrial relatoions solicitor.
Click to expand...

I'm doing my best to persuade him. He was out of work for a few weeks due to the dismissal and is using shortage of funds as an excuse.
 
Bear in mind that - with very limited exceptions - the most you can get on an unfair dismissal claim is your loss of earnings. If your friend was out of work for only a few weeks, the loss might be relatively modest, and it might therefore be uneconomic to hire an experienced solicitor. I would never look at taking on an unfair dismissal case without explaining to the client that the costs might well outweigh the monetary benefit of having my advice.

TUPE is a matter of fact; There is nothing the employers or the employeees can do to opt out of it. either it applies or it doesn't. Based on what has been posted, it seems reasonably likely that it could apply in this case.
 
http://www.flac.ie


Get some advice


Maybe ask for "No Pay, No win" lawyer ...


[broken link removed]

To check if they can stand over One year rule, I think lack of proper procedure followed would leave them vulnerable.
 
Update - he got offered a settlement, but was a smaller amount than wanted - didnt even cover loss of wages.

As there is now money on the table, I've managed to persuade him that lack of funds is not an issue now in hiring a solicitor. He's now engaged a solicitor, so we'll see what happens.
 
To give a final update.

Friend hired a solicitor who did a good job.

This case went to full hearing recently. The Tribunal took grave exception to the modus operandi of the companies involved - lack of paperwork, lack of dismissal procedures, engineering situations whereby they can dismiss employees without cause etc.

They decided to add damages to the loss of earnings he was seeking and awarded him the equivalent of 1 years salary, even though he was out of work for only 3 months. Award was way in excess of his expectations, so he is very happy to have got representation.

On the TUPE issue, the tribunal declared that there is no doubt that this is a TUPE situation.
 
One of the big benefits of him getting representation was that when the solicitors examined the case in detail, they discovered that the employers had screwed him on more than the dismissal i.e. illegal deductions from wages, underpayment of wages, some holiday pay, not paid for overtime etc. etc. so when it went to Tribunal, all of these issues were raised and he received compensation for all and when it added up, along with the damages, it came to nearly 1 years salary. If he'd gone it alone and won, he would have only received compensation for the dismissal.
 
You must log in or register to reply here.
Back
Top