Employment Tribunal / Pay Claims

[HSK]

Hello Hexus - before I explain this problem/dilemma I'm having, just want to state I am in the process of going through the proper channels to get advice on this problem. My reasons for getting a view here is just to see if there might be anyone who has had a similar dealing...or has a better idea of these situations.

I'll start with the situation - I was working last year from May for a small private company, that went in to voluntary liquidation around mid November. We (the employees) had an idea that things were bad, because we were getting paid late etc leading up to this...and it was confirmed one Wednesday afternoon when the director announced it, come that Friday we were out of the place. At that point I had not been paid for 6 weeks.

The director told us that he had been going through talks with another company to buy our client base and services, so the clients wouldn't be left out wondering what's happened. (our company did web development and hosting). The boss also mentioned they might take on one or two of the employees, and he specifically stated that if any employees were to start there, they were not part of the deal to take over the client base.

This other company is based in Aldershot, I said it was OK to my (ex) boss to pass on my details to this new company. The director from the new company then contacted me and asked when I could start? (which seemed a bit forward). I told him him I'd have to consider it, as Aldershot was a lot further for me to travel to etc...I said I'd come down and see the place first and have a interview.

Anyways, yes Aldershot was too far, along with the cost of travel - the pay offered was the same. So I just agreed to help out the new director till Xmas to get settled with our existing clients. Also to get some cash as I had not had any money come through in ages, I was waiting for the liquidators to get in contact with me regarding money I was owed.

The problem - It's now come apparent via the government insolvency agency, that new company I worked for temporarily, was a TUPE transfer. Long story short, anything owed to me is up to the new employers to pay (I'm claiming arrears in wages, holiday pay and notice pay).

So the government insolvency agency are telling me I'm not entitled to anything, and I have to take it up with the new company, or make a claim via the Employment Tribunal. I'm going to make some time to have a meeting with the director of the new company sometime this week.

It's damn annoying at the moment, because we wasn't made aware or told of any TUPE transfer (every time I asked the liquidators, they couldn't give me a straight answer whether it was or not). As far as I'm aware, legally they must tell us if it is a TUPE transfer - I wouldn't of agreed to the temporary position if I knew.

Anyone dealt with the Employment Tribunal before? I'm guessing it's a lengthy process. I'm currently unemployed - but luckily have some support for the time being. I could really do with that money I'm owed though. makes it worse I'm not even working for that company now who are legally (?) obliged to pay us.

Sorry for the long read Any advice is much appreciated.

[Lucio]

http://www.cipd.co.uk/subjects/emplaw/tupe/tupe.htm

Seems the relevant section is

"From 6 April 2006, transferors became obliged to give the transferee written information about the employees who are to transfer and all the associated rights and obligations towards them. This information includes, for example, the identity and age of the employees who will transfer, information contained in the employees’ written particulars of employment under section 1 of the Employment Rights Act 1996 and details of any claims that the transferor reasonably believes might be brought. "

[HSK]

Thanks for that link Lucio, I shall give it a proper read through in the morning :-)

[Unique]

give acas a phone, its free and confidential. acas get involved with all tribunal complaints before they go to a tribunal, and they usually resolve most issues mutually between both parties before a tribunal, as usually once each party is explained the law and possible outcome, they sort things out

they will likely ask you to put your complaint and detail in writing to your last aka new employer first. it's then up to them to deal with and respond to your complaint. how they deal with that may affect the outcome of a tribunal. once they realise the situation and check it (you can suggest they in turn call acas for advice - it shows you have sought professional advice) they may well accept the TUPE and pay your redundancy. this may possibly be better than redundancy pay via the governement, depending on your contracts terms for redundancy. if you have letters from the government refusing your redundancy pay you may wish to send copies as evidence

if they don't resolve things from your letter it may take a few weeks, two or three months maybe to complete the tribunal process

[eshrules]

AFAIK (and I will stand corrected if this is incorrect) TUPE is the effective transfer of a current employment contract (subject to amendments), from one company, to another.

This could be used in times of liquidation or, as I've encountered, the sale of a daughter company to another group.

As I understand it, before TUPE can be used, the employee(s) concerned have to go through a consultation, similar to that which you would at times of redundancy.

I'm also fairly sure, that as a result of this action being taken, you would sign a new contract, temporary or not, to agree to the continuation or possible variation of contract terms. (the lack of one makes it all a bit...illegal?)

This bit :

The director told us that he had been going through talks with another company to buy our client base and services, so the clients wouldn't be left out wondering what's happened. (our company did web development and hosting). The boss also mentioned they might take on one or two of the employees, and he specifically stated that if any employees were to start there, they were not part of the deal to take over the client base.

Is slightly confusing, you being transferred would have been part of the deal and is confirmed by the purchasing company's directors eagerness to get you started.

Where you stand in terms of legalities and your lost wages I'm not entirely sure and I hope someone can confirm I'm correct/wrong and offer a bit more specific advice.

[abaxas]

Hmmm,

The question is, do you really want to piss off your new employer. Becasue if you do, I'm not sure they will employ you for long.

[golwg]

Hmmm,

The question is, do you really want to piss off your new employer. Becasue if you do, I'm not sure they will employ you for long.

True but no need to get ripped off is there? He should get what he is entitled to at the very least.

[eshrules]

Hmmm,

The question is, do you really want to piss off your new employer. Becasue if you do, I'm not sure they will employ you for long.

Unfair dismissal... another nice piece of employment law. Standing up for your rights should never be patted down.

[jim]

Hmmm,

The question is, do you really want to piss off your new employer. Becasue if you do, I'm not sure they will employ you for long.

If you read the original post:

that new company I worked for temporarily... I'm currently unemployed

Note the past tense.

[HSK]

give acas a phone, its free and confidential. acas get involved with all tribunal complaints before they go to a tribunal, and they usually resolve most issues mutually between both parties before a tribunal, as usually once each party is explained the law and possible outcome, they sort things out

they will likely ask you to put your complaint and detail in writing to your last aka new employer first. it's then up to them to deal with and respond to your complaint. how they deal with that may affect the outcome of a tribunal. once they realise the situation and check it (you can suggest they in turn call acas for advice - it shows you have sought professional advice) they may well accept the TUPE and pay your redundancy. this may possibly be better than redundancy pay via the governement, depending on your contracts terms for redundancy. if you have letters from the government refusing your redundancy pay you may wish to send copies as evidence

if they don't resolve things from your letter it may take a few weeks, two or three months maybe to complete the tribunal process

Thanks for that, I'm going to be ringing relevant people today.

AFAIK (and I will stand corrected if this is incorrect) TUPE is the effective transfer of a current employment contract (subject to amendments), from one company, to another.

This could be used in times of liquidation or, as I've encountered, the sale of a daughter company to another group.

As I understand it, before TUPE can be used, the employee(s) concerned have to go through a consultation, similar to that which you would at times of redundancy.

I'm also fairly sure, that as a result of this action being taken, you would sign a new contract, temporary or not, to agree to the continuation or possible variation of contract terms. (the lack of one makes it all a bit...illegal?)

This bit :



Is slightly confusing, you being transferred would have been part of the deal and is confirmed by the purchasing company's directors eagerness to get you started.

Where you stand in terms of legalities and your lost wages I'm not entirely sure and I hope someone can confirm I'm correct/wrong and offer a bit more specific advice.

Yea this is the grey bit - at first, when the director announced the liquidation he mentioned a new company (exact words) "were buying the client database", and might take on just 1 employee. and if that employee was to go over, it wasn't part of any deal to sell the client data base - which I now know actually was, he kept it quiet in order to make a sale.

I left work, and then the boss contacted me after I had finished that job (albeit on my last day) asking whether it was OK to pass on my details to the new director who was thinking about buying the client data base - but at no point was I ever told about being transferred. as far as I knew and was concerned, I was accepting a new job...but the signs were there (the eagernesses for me to start) but I wasn't told.

Hmmm,

The question is, do you really want to piss off your new employer. Becasue if you do, I'm not sure they will employ you for long.

That ok, because I left that company anyway (24/12/09), I only accepted on a temporary position because Aldershot was too far to keep going there on that same pay.

True but no need to get ripped off is there? He should get what he is entitled to at the very least.

Yes I should get what I worked for and I'm owed.

[Mossy]

After speaking with my friend who works in insolvency

The new company are only entitiled to pay your pay in lieu, you need to find out if there was a sale contract and what that states about the transfer of employees. Get in contact with the Liquidator again and submit an RP1 form.

TUPE means Transfer of Undertaking for Protection of Employment

[HSK]

After speaking with my friend who works in insolvency

The new company are only entitiled to pay your pay in lieu, you need to find out if there was a sale contract and what that states about the transfer of employees. Get in contact with the Liquidator again and submit an RP1 form.

TUPE means Transfer of Undertaking for Protection of Employment

Hi Paul, cheers for your reply - it has been confirmed by the Redundancy Payments Office, that it is a TUPe transfer.

I had submitted my RP1 and was waiting to hear back (they got back to me yesterday). The main thing I'm concerned about is how that leaves me now, seeing that i don't even work for the company, and we were never told of any transfer.

Just phoned up ACAS. Will be contacting the previous employer via letter, and I'll probably go see him and tell him the (good) news that he is liable, and ask him if he even knew?! Need answers.

[Mossy]

Hi Paul, cheers for your reply - it has been confirmed by the Redundancy Payments Office, that it is a TUPe transfer.

I had submitted my RP1 and was waiting to hear back (they got back to me yesterday). The main thing I'm concerned about is how that leaves me now, seeing that i don't even work for the company, and we were never told of any transfer.

Just phoned up ACAS. Will be contacting the previous employer via letter, and I'll probably go see him and tell him the (good) news that he is liable, and ask him if he even knew?! Need answers.

Nice one mate let us know how you get on...