TUPE issue . . .

[LobotomisedIceSkatingFan]

Looking for some help as employment law is not my area of expertise at all.

I worked at my local pub for about six months, from September 2019. It was one of the owner's less successful ventures, and was on the market all the time I was employed there. We were told that our jobs would be safe if they managed to sell and my sketchy knowledge of TUPE reassured me that this was probably correct.
We were of course furloughed in March 2020. For about the next six months of that year there were no prospective buyers, and when the most generous furlough payments ended, we were told they had no plans to reopen the pub, it would remain on the market, and we were given our P45s, which seemed fair enough.
May of this year, it suddenly acquires a buyer. They have just opened, with brand new staff. While I do not need a job there - happily, I was offered more hours and a new position at my local school, going down 20 pw to 50+ - I might have liked weekend and holiday work, and am particularly chagrined as news has filtered back that staff employed by the previous owners are persona non grata and definitely won't be employed by the new ones.
I'm a good worker, and an experienced waitress who can read a restaurant and carry more than two plates at a time: things which are apparently beyond the girls they've just employed. I also feel a bit besmirched by all this, and am considering making an issue of it. Does TUPE give me at rights at all?

The fact the business stopped trading for a time doesn’t necessarily mean a TUPE hasn’t taken place- temporary cessations are a factor but it could still be a TUPE.

However even if you were able to establish that the new employer should have taken you on, there’s not realistically a lot you can do about it. Due to your length of service you wouldn’t be able to claim unfair dismissal, and in any case a TUPE entitles you to retain your existing terms and conditions, which you don’t want anyway, and even if it were possible to force them to offer you a job on the hours you do want, would you really want it?

Temporary cessations might not stop TUPE from applying but generally this will be where it is known that a buyer is lined up at the point at which the employees are dismissed.
If you were dismissed and then only after that was a buyer found then it’s less likely that TUPE applies (although every case has to be looked at on its own facts)

I’m an employment lawyer. Nobody will be able to tell you for sure ether TUPE applies without knowing a lot more about the situation and having all relevant dates.

No. I think there is some confusion

There are different types of sale, from asset to business, and a business sale normally involves staff tuped over, but again you’d need to look at the terms of the sale. Asset sales do not.

As you were given your p45 prior to the sale, you would never be tuped over. And as the place shut down it’s likely this is an asset sale only.

So in short. No.

That isn’t quite right I’m afraid bluntness.

Where is it wrong?

TUPE applies to asset sales. It doesn’t apply where only assets are sold eg a cake shop sells all of its freezers and shop fittings

It is possible for TUPE to apply when an employee isn’t employed immediately prior to transfer. Frequently businesses dump employees once they think they have a buyer (or at the buyers request) in order to avoid TUPE.

It does however sound like there was some gap between dismissal and sale

Businesses are sold via share sale or asset sale. Its share sales where TUPE doesn’t apply (or some insolvency situations)

Thanks. I take the point, which is of course absolutely true, that even if I were able to demonstrate that I should be TUPE'ed over per the 'temporary cessation' point, working in a pub where the owners were actively hostile, wouldn't be great. I suppose I was hoping to shit them up a bit because I think they're behaving like pricks, which isn't particularly edifying. I'm fucking pissed off, frankly. I've lived a couple of hundred yards from the pub all my life, and worked there in and off for years. I don't like the implication that there was something substandard about previous staff.

More importantly however OP, you don’t have the right to bring a claim anyway since you had less than two years’ service.

'Frequently businesses dump employees once they think they have a buyer (or at the buyers request) in order to avoid TUPE.'

In order to try and avoid? Or successfully avoid?

It’s nothing to do with previous staff being defective when this does happen. Its to do with length of service transferring, unfavourable contract terms etc.

In order to try and avoid? Or successfully avoid?

depends on the case. But you have no claim anyway since you were a short service employee.

”I suppose I was hoping to shit them up a bit because I think they're behaving like pricks, which isn't particularly edifying.”

Honestly there is absolutely no point, there really isn’t.

I agree, move on.

It isn't a matter of 'moving on'; either I had an avenue or I didn't. I wondered if TUPE essentially superseded the two years continuous employment - it doesn't, so I can't proceed. Fair enough. I shall make my displeasure known in other ways - such as pointing out in the Facebook page that the glowing view of the Sunday roast published on the 4th of this month is a bit suspect as the pub didn't open until this Monday, and only started doing food the following day.

It definitely is a matter of moving on- your posts clearly indicate that, but equally clearly you’re not ready to yet. I hope you find some peace soon and are able to stop letting these people get to you.

Channel Elsa.

Op just move on, rumours on prevjous staff are irrelevant, you’ve no right to employment there, no case, and slagging them off on line is just petty, really just move on.

Ignore the rumours on not hiring prevjous staff, they are prob bullshit. If a job comes uo apply.