TUPE transfer help

[MOZZ]

Hello

 

A long shot, but does anyone know the legallity of the following situation;

 

I am about to be TUPE transferred, in my current contract i can carry over upto 5 days holiday entitlement. I am told by my current employer that i must use up all of my holidays before the TUPE transfer.

 

Is this legal?

[andyofborg]

you really need to ask a lawyer

 

however, is it really worth the hassle for a week?

[ALAN 58]

Take a look at the ACAS website under TUPE , its very clears what will happen.Good luck

[Vaati]

http://www.acas.org.uk/index.aspx?articleid=1374

 

http://www.acas.org.uk/index.aspx?articleid=4598

 

http://uk.answers.yahoo.com/question/index?qid=20110402015908AA4u1Jb

 

Those links are likely to be of help. Sent a PM to you that I'd prefer to not be public.

[Elphi 24]

I've been involved with several TUPE transfers, both small and large scale and the transfer both in and out of employees.

 

Provided that the rollover of those 5 days is set out in your employment or you can prove that it's a general working principle (ie it's been regular practice, say over 3 years plus) then you will be able to do so under "custom and practice". The new employer cannot automatically change any of your terms and conditions (or custom and practice) unless you agree to do so on a whole contract change basis which means you're not able to cherry pick the most favorable terms from old and new contracts.

 

Feel free to PM if you have any other queries.

[MOZZ]

Thankyou for comments, i will see what the trade union has to say about it on monday.

[sarahlea1974]

Hi all.......need a little advice for a relative.

Do TUPE conditions apply if you haven't been in employment for at least twelve month?

Thank you in advance

[Elphi 24]

Can you explain a little more - when you say not in employment do you mean that you havent been working for them or are you referring to maternity leave, secondment, zero hours or anything else? If NO employment arrangement is in place then TUPE would not apply.

[sarahlea1974]

Thank you Elphi 24, my relative is currently in employment but has only been with them for three months. They are about to TUPE across to another company who are saying they do not have to honour his contract as he hasn't been with his employers for twelve months or more.

[Elphi 24]

The new employer HAS to take over the contracts of ALL employees who were employed immediately before the transfer.

 

The new employer and the existing employer can't dismiss an employee because of the transfer and is classed as automatically unfair. They can (and often do) dismiss due to "economic, technical or organisation" reasons and they class this as a redundancy but the onus is on the employers to demonstrate this.

 

What doesn't work in your cousins' favour is the short length of time and employers can get rid under a number of guises. I'd be recommending that you get something in writing about them not transferring him/her due to length of contract.