TUPE

[IamAporcupine]

I am aware this is a very specific question, but I am hoping someone out there might have the expertise.

I work for an academic institution and my boss (PI) is moving to a new institution. As I understand it the funding, grants and jobs are TUPE'd over to the new institution.

I have refused transferring and have a new job lined up in the 'old' institution (so I would avoid redundancy)

The two questions are:

1. is it correct that I HAD to transfer under the exact terms and conditions I had here. Ie, could not change from FT to PT at the new Institution?
2. Once the transfer is complete, if a new job (basically my old job) is advertised at the new institution, can anyone stop me from applying?

Hope this makes sense.
Thanks!!

1. The new employer could not force you to go part time. Your existing terms and conditions would have applied. If you wanted to go part time you could agree that with the new institution. They don't have to make you stay as a full time employee if you want to work part time, but nor do they have to agree to you working part time.

2. No-one can stop you applying or taking up a job with the new institution unless there is a restriction in your contract. However, the new institution may not be able to take you on. There may be restrictions preventing them recruiting staff from your current employer.

Thank you so much prh47bridge

1. I wanted to go part-time and the old institution said that was not possible, at least not during the transfer. They said that I might be able to negotiate that after transferring as FT.
   Does this sound right to you?

2. Why is that? And would I still count as 'staff from my current employer' if this is during notice period?

1. No it is not true that you have to go over on the same terms and conditions. The rules are designed to protect the existing terms and conditions, but if you and employer agree that you go part time there is nothing to prevent this.

2. I don't really understand this question. You have turned down being transferred but then ask if you can apply for your job? Why wouldn't you just transfer then?

Thanks too Alfie19

1. Nice. I was told by HR (old institution) that I will have to go as FT.

2. I know it sounds mad - but I didn't want to transfer FT, and was told I could not transfer PT, so I am now wondering if I could later apply for a PT position at the new institution.

2. Depending on exactly what has happened, there may be a contractual commitment from the new institution that they will not recruit any staff from your current employer for a set period after the work transfers. If there is such a commitment it is to stop them poaching staff in addition to those transferring under TUPE. If I were you, I wouldn't worry about that. If there is an appropriate position at the new institution you can apply for it. The worst that can happen is they say no.

Thanks!

Can I be a pain and ask again - there is no rule that says that I should first transfer as a FT employee and only after transferring would I be able to negotiate to go PT.

This is how 'old' HR sold it to me and the reason why I refused transferring. I need to know if I should contact 'new' HR asap to double check this.

Thanks a lot
@prh47bridge
@Alfie19

TUPE Regulation 4(5) is clear that the employer and the employee can agree a variation to the contract if it is for a reason unconnected with the transfer. So moving to part time, in your case, would be because you wanted to go part time, not because the job was being transferred.

Thanks a lot prh47bridge

I see. That's tricky.
I wanted to go PT so I could take up another PT job at my current institution. I guess that would count as 'because the job was being transferred' ?!

Not really. You could have chosen to go part time in your current job in order to take up another part time job at your current institution even without the transfer. And, since it is you initiating the change, there is no risk for the employer as you clearly agree to the change. They may, of course, be using TUPE as a smokescreen for their real reasons for not wanting you to go part time.

Thanks again
This is all too confusing.

It is my current institution's HR who is saying I cannot go PT, so not sure what their motives could be?

Also, just to clarify - I said I wanted to go PT so I could take up another PT job at my current institution. This was so I could remain a current institution's employee...because my original job was being transferred.

If your current institution states they don't have any PT roles, that's their motive isn't it?

Maybe it's me over simplifying it, but the issue you're describing is less about the TUPE and more about you wanting to stay in your current institution and wanting to change to PT, which doesn't sound like they can support.

Have you thought about putting in a formal flexible working request, which they have to consider at least, in terms of impact and viability. Maybe you could compromise on how many hours you do, I.e. if you were aiming to reduce to 3 days a week could you agree to 4 days instead. Maybe they just need to be persuaded that you can manage your workload in fewer days?

1. You transfer on your existing terms. If you and the new institution negotiated and agreed it, you could change to new terms (part time) immediately on transfer. However unless you were already in direct contact with the relevant decision makers at the new organisation, that would be a difficult thing to do. HR where you are now obviously couldn’t agree it, they’d have to either arrange for you to be able to negotiate individually with the new institution, or negotiate on your behalf. All a bit messy, and I imagine neither organisation would be keen to enter into individual negotiations about contract changes before the transfer had even happened. They’d all prefer to do the transfer as normal, then once it’s all done, if any individual wants to put in a flexible working request, they can do that directly with their new employer, who is at that point in a much better position to assess whether that request can be agreed.

@daisychain01 - If your current institution states they don't have any PT roles, that's their motive isn't it?

Sorry, that was not clear - when I said that my current institution HR says I cannot go PT, I meant they say I cannot transfer part time.

Maybe it's me over simplifying it, but the issue you're describing is less about the TUPE and more about you wanting to stay in your current institution and wanting to change to PT

No, that's not 100% correct. I only want to go PT in my current institution in order to accommodate two PT jobs: one at the current institution, one and the new institution, so it is about TUPE.

That's why I said before to prh47bridge that the PT issue could be seen as 'because the job was being transferred'

@flowery - They’d all prefer to do the transfer as normal

I think the bottom line is probably this ^^. It is too much hassle to negotiate individually, as you say, even though it is only 3 people transferring...

It’s not necessarily about too much hassle, it just objectively makes more sense all round for the transfer to happen and for anyone who wants to negotiate different hours with the new employer to do that directly as their employee.

Are you in touch with the new employer? Have you actually asked them whether in theory they’d be open to P/T hours?

I have not asked directly because my current HR said this (transferring PT) was not possible

Well, in circumstances where the transfer has been agreed based on you working full time hours, it isn't possible without the new employer agreeing to the variation.

And it makes no sense for HR to say to new employer "hang on a minute, we know we told you we had x staff working x hours and the transfer is happening on that basis, but porcupine has announced she wants part time hours instead, can we change the details of the transfer to accommodate?"

If they did that, the new employer would say "no, transfer was agreed based on full time hours, and in any case until we are responsible for the funding, grants, jobs etc, we are not in a position to assess whether the hours porcupine has requested are possible"

So although in theory it is technically possible for you to transfer straight to different hours if the new employer agrees it, in realistic practical terms, it isn't possible, because no sensible transferor would start raising that with a transferee at this point, and no transferee would agree something like that without first having responsibility for your job.

I don't understand why it is so important to get p/t agreed beforehand. Presumably if the transfer wasn't happening, you'd be full time, and would have to put in a flexible working request to reduce your hours, so why can't you just do that once you've transferred over?

thanks flowery

the PT option came up so that I could have another PT position at my current institution so that I would not break my continuous service with them (as I know that in the long term I will be staying)

hope this makes sense