TUPE, ETO and having to apply for a new job

[Ropeytupe]

Hi
My department/firm recently lost the contract for the service we provide. The winning bidder also won the contract to deliver the service for all the other firms across a large geographic area.
There is no question that TUPE applies but I am concerned that the way the new employer (NE) is applying it is unfair to the staff at the multiple outgoing employers (OE). Because of the way the service is delivered the transfer and closure of the OEs will be staggered over several months.
NE says that all affected staff at OEs will be made redundant at point of transfer, as each OE closes.
NE says that there are some vacancies- new jobs in addition to the NE existing staff, that the multiple OEs staff will be able to apply for.
The NE existing staff are not being put at risk.
Even if there are the same number of staff for a specific role in the OEs as the NE required (additional to existing staff) then they must still apply for the new posts. These appointments will be on to NE t&c and not covered by TUPE.
They are using ETO (location) as the reason for redundancy but I'm finding it difficult to identify case law to back up the position on (a) not putting their staff at risk (b) declaring the 'vacancies' to be new posts. They've said ETO service change for (a) but our firm already delivers exactly the same service as NE.
Would be grateful if anyone can point me in the direction of relevant case law, thanks. This position means that many staff will be forced into redundancy when they hoped to work for the NE or be on worse t&c.

[daisychain01]

I would contact ACAS via their helpline about this, as they are subject matter experts about TUPE, and you can give them the specifics of your circumstances. They also have a lot of information on their website albeit it isn't tailored to your specific circumstances.

Do you have a Union on your side working with the new employers, as it's crucial you have strong representation if you believe their assertions about the services being delivered, the new job vacancies and the protection of their existing staff are not wholly accurate. You would need a barrister if you want a reasonable chance of accurately identifying precedent and case law for the topics of concern.

[Ropeytupe]

Yes the union is on side, waiting to hear back from them. I've searched a few sites but as you say, it is quite nuanced.
Location is a relatively recent reason for ETO which I why I thought it might be a recent precedent they've based it on. Unless they're prepared to be the case setting it?
Thanks for your response.

[flowery]

Location as ETO doesn’t come from case law precedent, it comes from a change to the TUPE Regs in 2014 to specifically include change in location as a valid ETO reason.

I’m confused, if you think existing staff at the new employer should be included in redundancy pools, presumably you think location isn’t valid in these circumstances- is that because the existing staff are based in the same place?

[Ropeytupe]

What I don't understand is how they're able to say that our only options are:

1. Redundancy after TUPE transfer due to location

Or

1. Apply for a limited number of vacancies which will be under the new employer t&c even if for certain job roles there are exactly the same number of staff at the old employers doing that specific role as there are "vacancies".

The same change to services is happening elsewhere and in those cases the new employer is taking the usual route of putting their staff at risk. Not great for the existing staff, of course.

I understood location was added in 2014, but I'm still looking through examples of how it has been used. I suspect this is one of those things that if you work in HR/employment law it makes sense, and is confusing if you don't! 🙂

[flowery]

Is the location of the service provision changing or not?

[Ropeytupe]

Yes it is - I think that reason for stating redundancy is valid, it's the knock on that we're not sure about.
The old employer staff were expecting there to be fewer jobs, but thought there would an opportunity to apply for all the relevant posts at new employer. It was a surprise that new employer has decided not to put their existing staff at risk. The other places this service change is happening (different group of employers) have similar location changes and they've gone for putting all staff at risk.
I know it's horrible either way, and may be entirely within the rules but it vastly reduces the number of available jobs.
I recognise what seems fair and what the legislation allows aren't necessarily the same thing.

[flowery]

Are these 'vacancies' the same jobs only relocated? Or different jobs? If they are different jobs then I can't see a problem with expecting applications and offering these on new t and cs. If it's the same job but relocated, the current incumbents of the jobs at the old employer should be offered either relocation or redundancy.

I'm unsure why you think staff already in place at the new location should be put at risk? And are there really heaps of staff at the old employer who are willing to relocate? That's a bit unusual.

Surely either the 'vacancies' at the new location are in fact the relocated posts currently occupied by staff at the old employer, in which case no need to put staff already in jobs at the new location at risk, or they are the jobs currently occupied by existing staff at the new employer, in which case I can see an argument for putting them at risk.

[Ropeytupe]

The jobs at new employer are the same but just the extra on top of their existing staff they need to deliver the service. It's actually the ETO of service change being used for them being new jobs rather than transfer and put existing staff at risk.
There are fewer new jobs than staff at old employer.
I can't really go into any more specifics but thanks for your help.

[flowery]

That makes sense on reflection. If the jobs at the original employer are redundant because of relocation that is consistent to say the staff are able to apply for the jobs in the new location but aren't entitled to be transferred into them or to compete on an equal basis with existing staff at the new employer, because the jobs aren't 'suitable alternatives' because of the new location.

It's odd to do something different in other locations with the other original employers though - are the other instances not as different a location perhaps, not as far away?

[Ropeytupe]

The other new employers are different organisations with different set of old employers. There are similar, if not farther distances involved. The other new employers have decided to a different tact though. Hence wondering if this new employer's approach could be challenged.

[flowery]

Oh I'm sorry, for some reason I thought the new employer was the same for all.

I can see the basis for what they are doing. In terms of their own vulnerability, if they effectively 'bumped' an existing member of staff (person A) out of their job to make room for someone whose job at a completely different location was redundant, they could be looking at an unfair dismissal claim from person A.

If the location was the same, and the reason for person A's redundancy was that there are (as the result of the TUPE) too many widget makers in that location, and xyz criteria were used, that's solid.

But if there were not too many widget makers in that location but person A was made redundant in that location purely because person B who was redundant at a different location was being employed instead, that's potentially an issue.

[Ropeytupe]

It's a bit complicated.
There are parallel TUPEs taking place.
Companies A-D services are moving to Company 1
Companies E-G services are moving to Company 2
Companies H-K services are moving to Company 3 etc

Company 1 is doing the TUPE = redundancy because of location, no transfer because service change means the jobs are different, so their staff are not at risk. There are a few 'new' jobs available because Company 1 does not have enough existing staff to provide the service. We (at company A) don't agree there is a service change because we provide exactly the same service as Company 1. B-D provide a slightly different but very similar service.

Separately but because they also provide the same service in a different geography...
Companies 2 and 3 are just TUPEing all the staff from E-G or H-K, and doing a staff consultation with all at risk. They could have used the location ETO reason but some for unknown reason have chosen not to.

We're not arguing that anyone should be bumped out of a job but think that the company A-D given a fair crack at all the posts rather than the leftovers. There are more people than jobs but Company 1 has ringfenced their existing staff. Like I posted before, I suspect it's case of legislation vs. what seems fair.

[flowery]

"We're not arguing that anyone should be bumped out of a job but think that the company A-D given a fair crack at all the posts rather than the leftovers"

That would be the result though. You have to take the process you are proposing to its conclusion. If staff at companies A-D get a 'fair crack' at posts staff at Company 1 are already sitting in, then the effect is existing staff would be bumped out of their job to accommodate a redundant employee from another location.

If there was no relocation involved, I would agree with you that all staff in those jobs in A-D and company 1 should be pooled and a selection process applied. But redundancy is a reduction or elimination of the work in the location in question, and there is no requirement when conducting a redundancy process in one location to include people doing that job in another location in the pool, potentially bumping them out. There is an obligation to give redundant employees access to vacancies, which they are doing.

Sorry, but I think it sounds fine.

[Ropeytupe]

Oh dear - it's not very pleasant being on the receiving end of this. Particularly as we know other places are dealing with it differently, which would give our staff at least more opportunity to get a job.
Company 1 will actually be doing the work covering the locations that A-D currently serve rather than the work disappearing.
Thanks for giving your opinion on this 🙂

[flowery]

”Company 1 will actually be doing the work covering the locations that A-D currently serve rather than the work disappearing.”

Location in a redundancy context means where the job is, not the area it covers.

The company will have weighed up the legal vulnerabilities (and other factors) from both points of view, and will have come to the conclusion that doing it the other way would represent greater legal vulnerability and/or an unacceptable level of business disruption.

I’m sorry, I know it’s awful being on the other end. I’m just giving you my honest objective opinion, and I think company 1 would probably potentially expose themselves more by doing it the way you would prefer.