By Emma McClelland and Olivia Vicol - 12 July 2022
For many of us, job security is a highly influential factor when deciding where to work. When the company we work for changes hands, that sense of security can be shaken, especially when consultation is lacking and communication is poor. This case study concerns TUPE transfers, which occur when an organisation (or part of it) moves from one employer/owner to another, or when a service (e.g. a cleaning contract) is transferred to a new provider.
TUPE stands for Transfer of Undertakings (Protection of Employment). TUPE regulations are designed to protect employees' rights (and, in some cases, workers' rights) no matter the size of the organisation. In theory, employees have the right to transfer to the new employer with the same terms and conditions they agreed to in their existing employment contract. However, as this case study shows, the question of exactly when TUPE does and doesn't apply can be complex. And it can take a lot of hard work to enforce its regulations when neither employer - through ignorance or intent - seems to understand their responsibilities.
Committed employees, cast aside
In late October 2021, we received a referral from our friends at IRMO. Two Latin American women - one in her forties, the other in her sixties - needed our help. Gabriela*, the woman in her sixties, had been working for her employer, a cleaning company since 2004, receiving the minimum wage throughout her employment and experiencing several TUPE transfers already. Her friend, Beatriz*, had been with the company since 2013. Having accrued such a long service, you'd think their dedication would be valued and rewarded. You'd be wrong.
Leave, and don't come back!
In August 2021, Gabriela and Beatriz received a TUPE transfer letter alerting them to an upcoming move to a new company, effective from 1st September 2021. Although they hadn't been consulted, they took the news in their stride and turned up to work on the 1st September. After a day's work, they were told not to return, as the new company had its own cleaners! With no warning, no recourse and no compensation, the women were shocked. How could this happen so suddenly, and after years of dedication?
Companies play pass the buck
Astonished, Beatriz contacted both companies on behalf of herself and Gabriela. Each of them gave a curt response, instructing her to contact the other. The new company hired a solicitor to email Beatriz saying they didn't recognise the TUPE transfer and, as such, the responsibility did not fall on them. With our help, Gabiela and Beatriz attempted to resolve the issue through ACAS, but both companies continued to point the finger at each other, shirking responsibility. We knew then that, to help these women, we'd have to start tribunal proceedings. So, in December 2021, lead adviser Bethany filled out an ET1 form for unfair dismissal.
Calling on the strength of a network
With such a complicated case on our hands, we decided to get in touch with Tower Hamlets Law Centre, through our partnership with ELAN. Employment adviser Cristina and trainee solicitor Camille took on the case, with Bethany continuing to provide support and translation to the women. The crux of the matter was whether the transfer had happened or not and, therefore, who was ultimately responsible.
The court date was set for the end of June. We felt confident that the TUPE transfer would be recognised. Apparently, the new company did too, as they soon made both women an out-of-court offer. After some negotiation to ensure both women received compensation that reflected their length of service and loss of income, our final counter-offers were accepted.
Gabiela was delighted with her settlement, which reflected what she would have received had there been a redundancy, and included the notice pay she wasn't given, as well as unpaid holiday and her schedule of loss, which included several unpaid weeks of work. Beatriz was also relieved to reach a settlement and finally put the whole ordeal behind her.
Stay informed, know your rights
Employees on both sides of an organisation going through the TUPE transfer process should be supported, not abandoned. Employers are supposed to consult and inform employee or trade union representatives, telling them why the transfer is happening and how it will affect them. Sadly as Gabriela's and Beatriz's story demonstrates, best practice behaviour is not always carried out. In these cases, employees can feel like they've been cast aside but it's important to remember that there is always a route to recourse.
If you’ve experienced a loss of rights during a company transfer, please get in touch. To help our multilingual team defend workers' rights, please make a donation.
*Names changed to protect anonymity
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