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Diane Carus
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I would like to know what the implications are re: TUPE and redundancy if:
Our company took on some agency contractors who are currently working for another much larger company. They have all worked there for about 15-20 years.
If they decide to leave without coming to us, will they be entitled to receive redundancy pay from the other company, being contractors?
If they come to us will there current contracts have to remain the same? Will we have to pay them a redundancy sum equivalent to that which they would have received from their previous company if the work here slows down and we cannot keep them on?
Many thanks
Diane Carus
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Anonymous
First of all, the transferor and the transferee should agree as to whether or not TUPE applies, the identity of the `assigned' employees and the date on which the transfer takes place. I am assuming that this has taken place and the transfer date is due at some stage. The `assigned' status may be difficult to judge from this distance for the agency contractors but they may well fall within this category.
If they are eligible to transfer, any `assigned' employee may reject a transfer and choose to remain with the transferor providing a job exists for them and such an opportunity is offered. If, however, no offer to remain is made and they choose not to transfer, this situation is, in effect, a resignation as the work has transferred to the transferee and they have chosen not to go with the work. There is no provision within TUPE for an employee to resign or claim that they were dismissed with a redundancy payment as an alternative.
If they do have the right of transfer, then they will do so on their existing terms and conditions and continue to accumulate statutory rights and contractual rights which will affect their entitlement to a redundancy payment if the transferee makes them redundant at a later date.
In providing these obseravtions, I must qualify them by questioning the status of agency contractors which is fundamental to the outcome.
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