Employment Law Question

[squirrel_hunter]

My department is being Outsourced to a rather large company... But fear not I'm not after sympathy or such like as I had already made my decision to leave before Christmas and have my CV out there.

The Outsourcing company is taking all employees on and we will be transfered across under the TUPE rules. From there we can apply for a role on our current companies account or they will try and place us within their company. If we do not find a role with the new company then at the end of the knowledge transfer process we will become redundant. If we do not want to transfer to the new company then we will have to resign.

I've thought about this and as I have already decided to leave, and I know that there is no role in the new company that I wish to apply for I would like to take redundancy. The problem is the new company will not make me redundant until the knowledge transfer process is complete. This is expected to take some 6 months and there is no incentive to stay and not resign. I have no wish to take part in the knowledge transfer as I have no interest in it whatsoever.

Basically the redundancy isn't much but its worth having and might prompt me to do things a little differently, it may also coincide with me getting a new job elsewhere, who knows. But I don't want to wait 6 months for it as its not that great. I was thinking of ways round the wait and would like some clarification...

Say we get TUPE'ed on the 1st of the month, my role is transfered across to the Outsource company and ceases to exist at my current company. If I were to resign on the 31st, the day before, what would happen? I assume that I would have to work my notice, but how, my job no longer exists? Wouldn't that mean that I am redundant?

Hopefully you can see what I'm getting at. I basically don't want to work my notice as I have no interest in performing the knowledge transfer but would like some sort of lump sum either my notice period or my notice and my redundancy. Any suggestions?

First off, I don't know anything about employment law or your legal standing.

I think if you resign you're not entitled to any redundancy payment. So you probably shouldn't resign - there's your incentive to stay.

I was recently involved in a similar situation, where my position was to be made redundant but the company I worked for basically blackmailed me for my redundancy agreement (what was above and beyond the statutory redundancy as required by law) until the "knowledge transfer" was complete.

For once, having a hard-on for writing great documentation came in very handy. I don't expect people to read everything, so I even included pictures. So in my case, there wasn't a lot of work required for my "knowledge transfer" to be complete: I simply pointed to the existing, up-to-date documentation regarding whatever questions were brought to me; I certainly didn't spoon-feed them.

It's a tough situation. You certainly shouldn't put yourself in any jeopardy (in the upcoming 6 months) to justify your being fired for incompetence, if you fail to complete your work duties, for example. If this includes a "knowledge transfer" or not, I don't know.

I'm thinking you should continue to fulfill your work duties, and at the same time start looking for new work. If your current employer can grant you some "gardening leave" until your redundancy date is met, then that's great. If not, then that kinda sucks but if you leave of your own accord then you're probably giving up whatever statutory redundancy to which you may be entitled.

Good luck!

quit you get f all ,unfortunately your pretty stuck, you could do a bit if time with the new lot and nearer the finish time (if youve got a job to go to) go sick for a while

[squirrel_hunter]

Originally Posted by ridelikeaturtle

I think if you resign you're not entitled to any redundancy payment.

That sounds familiar. But to prevent myself from being TUPE'ed and then having to wait a long time for redundancy I would have to resign. My question would then be how do I see out my notice as my job no longer exists in my company? And isn't that one of the defining points of redundancy?

If I have to stay and get TUPE'ed then I'm not going to do anything silly to get fired, I'll just resign as I do want a reference at the end of it all. Its just that I really don't want to be involved in the documentation of the system as to achieve a knowledge transfer would take far more effort than I would ever be rewarded for, considering the system I would be covering.

Originally Posted by ridelikeaturtle

If your current employer can grant you some "gardening leave" until your redundancy date is met, then that's great.

I don't have a garden, could I get 'garaging leave'? As I understand the term its them just saying "we'll take your resignation, but you don't need to work your notice". That would be fine but what are the rules around it? Is it discretionary and how would I go about approaching the subject of getting it?

[Bri w]

Why not tell the new company you intend to resign and would like to 'sell' your knowledge but are willing to stay long enough for the knowledge transfer if they are interested. If they aren't then resign, if they are you will have negotiated a 'redundancy' and may well still leave before the 6 mths is up.

Probably could have explained it better but its early and I'm hungover...

A question that needs answering first, due to your length of service with employer, in your CONTRACT OF EMPLOYMENT is their any reference/statement that you "will" paticipate in a transfer of knowledge under reasonable circumstances?
JOHN

TUPE (Transfer of Undertakings (Protection of Employment) Regulations 1981) is seriously complex mate.

My job is to design and sell outsourced IT deals, but I'm technical sales. Once we have a high level picture of what we would be doing under the deal, and it looks like it is actually going somewhere a due diligence team will join me to thrash out all the details that I don't have the time and necessary variety of skill and detailed knowledge to do. So whilst I have come across a lot of TUPE over the years, I still don't try to determine myself if TUPE applies. I refer it to the legal beagles and take their advice.

You will be eligible for TUPE if the vast majority of your role is being outsourced, so for instance if your raison d' etre in the company is to work on a contract for customer A half the time and customer B the rest of the time, and company A is outsourced, you probably wouldn't be eligible for TUPE. But if you are employed primarily to work on customer A only, then you will be eligible. A "customer" can be an internal function as well as external third party.

You need to drop the idea that your job in your existing company no longer exists. Your "job", ie: your role, functions and responsibilities do still exist, TUPE is a transfer of that "job" to a new employer.

Do you have to work your notice with the new employer? I think you do, but I will check on Monday. You could go off sick for a month, but that won't do you any favours either when it comes to getting a good reference.

Nobody can force you to work for a new company, but because your role still exists you would need to resign, you're not entitled to redundancy from your current employer as your job still exists and it is on offer to you. If the new company makes you redundant, you retain your tenure and all your current contractual benefits, terms and conditions. You should be paid the same redundancy package that you would have got if your current employer made you redundant. How many years have you been working there?

Also forget "selling your knowledge", or withholding it in any way, you have been paid to obtain that knowledge, that intellectual property belongs to your employer, it's not yours to sell and withholding it will not do you any favours. I'm afraid you are just a number, and if that number is being an awkward PITA then they'll just find the quickest and cheapest way to get rid of that number (you!) and then potentially you won't get a good reference (you won't get a bad one, but you'll get something that says you worked there for X amount of years and no further comments, which is the same thing).

The outsource employer can never fully "knowledge transfer", and when an outsource organisation takes on a contract they will need to employ more staff in order to deliver it. That doesn't mean they will need as many people as they have had to TUPE by law though, hence the redundancies, but they will probably need more people than they have today. There is nothing more valuable than GOOD staff who have lots of knowledge on the contract they are now striving to deliver to a contractual service level. If you are actually happy enough in your job, then don't worry too much about having a new employer. The grass is not always greener, or browner, on the other side of the fence. If keeping your job is an option to you, be friendly and helpful to the new company and do everything you can to knowledge transfer. Don't withhold any information, but let them see that you have a wealth of useful knowledge, you will fit in well with the new team, and your a good and dedicated employee that's worth keeping. As the person with the most knowledge, compared to current employees of the new company, if you are seen to be worth having, you would be a key member of the team delivering the new service, there could even be a promotion it it for you. The new company will decide in the first few weeks who they are keeping and who they are making redundant once the knowledge transfer is complete. And it's the guys who made their lives difficult in the transition that will go first. Even if they don't have a role for you in your current job, if they think you are a good guy with good skills, they will try to find something else for you, working with you for a few months is a much lower risk employment strategy than taking somebody else after a couple of interviews. Outsource organisations often service many customers, so opportunities for development are often better than working for a company who concentrates on doing one thing. You get a much wider exposure and so learn much more and opportunities may open up for you on other contracts, that don't exist now.

If you don't like your job, and don't want to work for the new company, then my advice would be to do all of the above, to secure your monthly income, whilst you are looking for something else.

If you need any other questions on TUPE answered, post them over the weekend, and I'll strive to get answers for you on Monday.

[squirrel_hunter]

Originally Posted by -Ralph-

You need to drop the idea that your job in your existing company no longer exists. Your "job", ie: your role, functions and responsibilities do still exist, TUPE is a transfer of that "job" to a new employer.

My job defiantly will be TUPE'ed and I am in scope for TUPEing, "It is anticipated that all affected employees will transfer", the whole department is going. Further more "[if] they are in scope to transfer but decide not to transfer, they will be deemed to have resigned on the date of the proposed transfer". Hence my reading that my job would have transfered but I have not, how would I then see out my notice?

Quotes taken from Q&A documents provided by the relevant HR departments.

Originally Posted by -Ralph-

Do you have to work your notice with the new employer? I think you do, but I will check on Monday. You could go off sick for a month, but that won't do you any favours either when it comes to getting a good reference.

Nobody can force you to work for a new company, but because your role still exists you would need to resign, you're not entitled to redundancy from your current employer as your job still exists and it is on offer to you. If the new company makes you redundant, you retain your tenure and all your current contractual benefits, terms and conditions. You should be paid the same redundancy package that you would have got if your current employer made you redundant. How many years have you been working there?

I think I would have to work out my notice with them if I am TUPE'ed and as I expect it will be some months before I would be made redundant then I will be resigning. I have been with them for around 6 years, so redundancy while not a huge amount would be nice.

Originally Posted by -Ralph-

Also forget "selling your knowledge", or withholding it in any way, you have been paid to obtain that knowledge, that intellectual property belongs to your employer, it's not yours to sell and withholding it will not do you any favours. I'm afraid you are just a number, and if that number is being an awkward PITA then they'll just find the quickest and cheapest way to get rid of that number (you!) and then potentially you won't get a good reference (you won't get a bad one, but you'll get something that says you worked there for X amount of years and no further comments, which is the same thing).

I don't intend to try a 'selling my knowledge angle' as I know that there are some serious legal consequences for things like that if they go wrong, and thats not my style. However if I'm not going to be staying with them after the transfer process is complete and the redundancy isn't that much what incentive is there for me to stay to the bitter end and help out? None has been the answer so far. Though if I do have to stay while I find something else then I will perform my duties. But I have to say...

I am not a Number, I am a free man!

In relation to the reference thats really all they put anyway. The detailed reference would come from my soon to be former boss, and my leaving early would not affect this.

Originally Posted by -Ralph-

If you don't like your job, and don't want to work for the new company, then my advice would be to do all of the above, to secure your monthly income, whilst you are looking for something else.

It was never a case of me not liking my job, I had just came as far as I could there and could progress no further, hence I was already looking around. I have no wish to stay with the new company other than to have a source of income until I have something else to go to. Unless I can leave early with a pay out...

[Biker Biggles]

From memory you are entitled to something like a weeks pay for each year served but this is capped in some form under redundency.Either way it isnt much,so I suggest you tupe over and just continue to look for another job.that way you get paid and if you cant find another job ----- you get paid.

You certainly are a free man, and to the people you work with now who know you may be a damn good guy and employee, but to the new company, you are employee no xxxx who they are being forced to employ by law, until you show them otherwise and make your mark of course.

Whatever you decide, I wish you all the best of luck with it.