Redundancy and re-employment

[CantWaitUntilTheWeekend]

My colleagues and I do not agree to a change in our contracts. Can our employers make us redundant and then re-employ us on the terms they wish us to have when the job/roles will still exist?

The role is made redundant not the person so I don't believe so. They can, however, give you the required amount of notice for a change in terms which you either accept or resign. This has just happened where I work

If the role still exists it's not redundancy.

Yes sugar quite right, then if you resign you can go to Tribunal and claim constructive u/d. But you still end up without a job!

We are under TUPE if that masked a difference.

The new terms are less favourable

Are you within a year? T's & C's can be changed after a year provided the contract isn't less favourable overall

Outside a year but the new contract offers same money but reduced sick pay and bank holiday entitlement

Sorry x-posted. You can be made redundant but not re-employed as your role is redundant. Contracts can be renegotiated as long as the sole reason for change isn't the transfer.

Its not redundancy its a process called dismissal and reengagement and Yes your employer can do it if they have a fair reason for needing to make the change (generally financial need) and if they follow the correct process and serve the correct notice on you. You don't have to accept the new contract but then you will have been dismissed. It is not a redundancy situation so you are not entitled to a redundancy payment - they still need the employee.

I'm an employment lawyer and have taken employer clients through this process on numerous occasions.

If the only people affected however are those who TUPEd then this is harmonisation of terms and it is void. Most employers won't be that silly, they will take the entire workforce through the process so that they can show that the process is not connected to the transfer.

New company don't want to pay for sickness, however there is no other incentive.

Can they unilaterally change a contract? What is the point in a) a contract b) TUPE if this can be done?

Are they only changing the terms of the TUPEd people?

About 50% of my colleagues agreed new contracts, we all have the same role. The rest didn't as the new terms are less favourable.

Can they dismiss and re-engage the 50% that didn't sign?

Are all employees having their contracts changed? That is what my employer did. Not just the TUPEd staff

They consulted with us and about 50% agreed- they didn't want to rock the shop so to speak. The remaining 50% did not agree- we are now left in a position where employers want to force the change.

Only our department. But it does not include those who were taken on after the transfer. Therefore there are 3 different contracts for the same post.

Does it include staff who were in the department before the transfer? Staff taken on since may already be on the 'new' contract

All TUPED staff within our department were offered the new less favourable contract. Only half agreed. Those in our department who are new since the transfer are on an entirely different contract all together.

Are all staff including the staff who were employed by the company before the new TUPE staff arrived, being asked to change their contracts? If so then it is a legitimate process (as long as they do it correctly).

If only TUPEd staff are being asked to change then it is likely to be harmonisation and void.

Your answers are not clear I'm afraid and so I can't say. If you answer the question I can.

Sorry not to come across clear, I'm worried about being outed! New company don't like me taking a stand.

The company I work for is a large organisation. They took over the facility I work in. Everyone in all departments was Tuped over. It's only our department that has been offered alternative contracts- although I believe they may be dealt one by one.

Therefore it wouldn't effect non-Tuped staff as there aren't any other than those who have joined since the transfer- they have an entirely different contract with different terms.

Can my employer terminate my contract and then re-employ/re-engage (as stated below) even when we are subject to a TUPE transfer?

I really can't see the point in TUPE if this is allowed- no protection at all!

Speak to acas

I have, the advisor I spoke to was not helpful at all. They kept telling me to take it up with my employers. They gave no guidance at all, didn't offer and advise as where I stand legally.

Its because its a complex question. You need to take proper legal advice from a solicitor who can go through the detail and the timeline and the correspondence/communications with you.

In theory its void since its connected to the transfer. They are changing the pre transfer terms to match their existing terms.

However depending on all sorts of other factors they may well be able to show it is not connected to the transfer. In which case they still need your consent to make a change to your terms or they dismiss and re-engage. If they dismiss and re-engage they may or may not have a fair reason for doing that. You might have a claim if you are dismissed and re-engaged (even if you are re-engaged) depending on factors such as your length of service, their reason for the D&R and the process followed.

Thanks Cloud, I realise it's complex. I am in the process of taking legal advice but the process is slow and frustrating.