Anyone work in HR and can help with contracts for old employees?

[Fashionista101]

Probably the wrong place to post this but hey ho.

I work for a company that used to be called something else and went into liquidation. Now we had 2 members of staff at the time. Some took on the staff and premises and became a franchise of the company I now work for.

One of these 2 employees have just handed their notice in. when the new person took over they needed to do TUPE but this person never had a contract (started off as a Saturday boy, then did a couple of days whilst at college, then full time).

I hope this is making sense.

Now he is leaving the person that has taken over has asked me to create a contract for him?

1. I have no idea if I can even do this? Legally? Apparently the new person can't.

1. I could maybe copy the other guys old contract. But it won't be signed and I don't know any dates.

1. Any advise would be great as I don't really have anyone to ask.

Have I understood this correctly:
Company A had a number of employees. Company A went into liquidation.
Company B took over the premises and employed 2 of the employees.
Company B then became part of a franchise run by Company C, who you work for.

When Company A ended, the contract of employment with them ended. When Company B started, a new contract of of employment began. Under TUPE (if it was followed) the terms and conditions from the original contract would have been protected, such as salary, holiday etc, and the length of service may also have been protected. This only applies to those 2 employees who originally came from Company A.

You don't have access to copies of any contracts / it appears none were ever created? You can't retrospectively create a contract and claim it was in place all along, as you're rightly concerned about. I presume perhaps you're being asked to, in order to define what the notice period should be?

I would ask the leaver for a copy of their Company A contract, as evidence of any protected terms and conditions. If they can't produce it and no-one else has a record of it, I think it would be reasonable to apply the standard terms and conditions of the employment contract all current employees are bound by - unless there is some huge difference that makes it highly disadvantageous?

This needs a lawyer to oversee it.

Could you clarify this sentence please?

"Now he is leaving the person that has taken over has asked me to create a contract for him?"

Is it:
"Now the employee who TUPEd across is leaving the owner of the business has asked me to create a contract for that employee"? Or something else?

@MagicKeysToAsda yes you have nailed it.

Except when company B took over I couldn't find any contract so doesn't look like he had one. And TUPE couldn't be completed/carried out. So still to this day he doesn't have a contract.

But which employee are you trying to create a contract for? The one who's leaving (to enforce notice period/restrictive covenants to prevent them working for a rival etc) or the other remaining employee to prevent confusion in the future as to what terms apply.

Either way, you can say that even if they don't have a written contract, you can infer some sort of agreement because they kept turning up to work - ie that they will work, that they are entitled to their current salary and annual leave and that they agreed to any standard terms for company A (ie anything that would have been in the staff handbook).

If it's the remaining employee you are concerned about there is is nothing to stop you asking if he will sign a new contract so you both know where you stand. You can't force him to but he might agree.