Redundancy and TUPE questions...

This is my first post so hello and thank you for any responses in advance.

I have been working for a company now for 2 years 7 months. I work part time, 12 hours per week on three nights, from 8pm-12am at home. I work Thursday, Friday and Sunday nights.

I am also offered a lot of holiday cover and sickness cover as there is one other person who does the same job as me on three of the other nights per week.

Last week I was covering one such occasion for the Tuesday and Wednesday night in addition to my own nights.

On the Friday night, 1 hour before I was due to start work I received a phone call from one of the directors of my company.

He told me that a company well know to ours, situated close by and providing fresh food produce instead of the ambient canned and frozen we supply had gone out of business. Seizing the opportunity, the director of my company had stepped in to take the telesales staff and customers from this company.

As a result of this, the telesales staff moved over from the new company would be starting work that evening and as I result I would not be able to log into work.

He discussed briefly with me the possibility of me being offered one of these roles back in house, but they had asked me not to work at the moment for these reasons.

Having got back home and considered this, I then asked to be provided with a written request not to work this period which I received via email a few days later, this Monday.

Let me just lay that out at this point. Last week, had I not have been asked not to work, I would have been getting paid this week for my standard 3 days, plus the two extra I had done. I had completed three of the five nights before being asked not to work the final two.

I hope I am making this clear enough...


This week then, I have spoken to the Director of the company and during our brief conversation he described to me how he would like to meet with me on Friday 14th January (later today) to discuss this possible alternative role, or indeed the redundancy of my position. I will enter most of that letter here:

"I write to request you to attend a formal consultation meeting to be held on Friday 14th January 2011 at 14.00 hours at XXXXXXXXXXXXXXXXXXXXXXXXXXX.

The purpose of the meeting is to further discuss the potential redundancy situation with regards to the position of Night-time Telesales Operator (Homeworker).

The meeting will be conducted by myself and XXXXXXXX and you are advised that at this point the statutory right of accompaniment does not apply. Please contact me if you require any assistance in making the arrangements.

Reasonable transport costs will be reimbursed upon production of a valid receipt.

If you would prefer this meeting to take place over the phone that can be arranged, please contact me the day before the meeting arranged above to arrange this if you would prefer."

Now, my usual pay day is Friday, so Friday has now come and I have been paid only for the three nights I worked last week and not the two extra nights which they asked me not to work. This may seem like a small amount, but being in an already precarious position after my temp contracting ending with my full time position a little over a month ago, and making certain financial decisions to protect myself since his announcement last Friday, I am unable to even afford to attend this meeting. To clarify I live 45 miles away and do not drive.

Here are my questions:

1. As I have been asked not to work during this period as we obviously will have to discuss the situation somehow, am I entitled to be paid and my standard contractual rate? Also to include the over time I had worked?

2. This is the big question. Having read most articles about TUPE that I can find, it does not seem at all clear to me whether my position is protected at all as I am not part of the company being transferred, rather an employee of the company taking on the new staff and customers.

I will be contacting him later today to inform him of these facts.

Thank you for taking the time to read my long and rambling post. I would be most grateful of any insight that could be offered.

I think I got that, although it was a little confusing in places - but just because it seems a confusing situation.

As far as I can see, you work three nights and those are your contractual hours. Anything over that is overtime, albeit there may be a lot of it having been available. On this basis, since there is no right to overtime, and you had complete your contracted work, I cannot see that the employer has done anything wrong in law by withdrawing the overtime promised.

You are correct that TUPE does not protect you because you have not been transferred - but your position is protected anyway because you have more than 52 weeks employment, so you don't need any more protections! Any redundancy situation must be fair - and that means that if there are new workers joining the company doing the same job as you (which is what has cuased the potential redundancy) then they must also be incluided in the at risk group. TUPE does not prevent them from being made redundant - it protects them from being made redundant solely on the grounds of the transfer. If they are not included in the at risk group, and treated in the same way as you, witha decision based on a fair and objective selection criteria, then you may have a claim for unfair dismissal. You should be pointing this out to the employer.

I hope that helps

I very much appreciate your help in this matter. It is great that there is someone like yourself offering advice like this online.

For your first answer....

That does make sense. To make sure I understand, because I had completed 3 nights work, regardless of the fact that two of them were outside my standard hours, it nonetheless is equivalent to what I am contractually entitled to per week and therefore I am not entitled to be paid for the two extra days I normally work to be paid?

And in the second TUPE question...

The new staff coming into the company will " be invited to apply for the job" in the same way that I will be. However, due to the fact that it will be an in house position, at non standard hours from 8pm to 4am possibly, I cannot take the job as default as there simply isn't a mode of transport for me at that time of night. Would that kind of offer of alternative employment be deemed fair and reasonable, or as I suspect would I need to seek further advice to prove that?

Once again, thank you ever so much for your prompt and precise reply.

Warm regards

Yes, to the first one - your are contracted to work a set number of hours, so anything over that is overtime and not contracted. The days of the week that the set hours are worked on aren't really relevant, although I would lay bets that if you check the small print it says "normally XX days"! which of course means that it may be other days sometimes.

In terms of the second question, the employer should allow you to compete for any suitable alternative vacancy (you obviously don't get to just be offered it without some selction process). If it is not a suitable alternative for the reasons that you explained, then it is fair that you can turn it down - but they do not have to create a job that meets your personal and transport arrangements, if you understand what I mean. They create the jobs, and you have a right to express an interest in anything that is suitable - but they don't "write a job" around you. If no suitable alternative existed, then that does, unfortunately, leave you as redundant

Thank you once again for clarifying this for me. It isgreatly appreciated.