The experts, Adam Partington and Esther Smith advise on a TUPE puzzle…

The question: TUPE puzzle

A well known bank recently closed down the Independent Agency Network – staff are employed by an Independent Agent who has a contract with the Bank to run local agencies for them. It was decided by the bank that there was a service provision transfer under TUPE and they also decided to carry out all consultations with staff to the exclusion of the Agent/employer. Some staff, if selected by way of a test, were offered cashier jobs in bank main branches, others were transferred via TUPE then made redundant by the bank. I left the same after 20 years to run a group of agencies all of which were closed by the bank early Nov.

I was included in all three consultation meetings over a four month period with the bank all of which are documented by them and all of which told me that I would be transferred to the bank on closure and made redundant unless I found a job in a branch or stayed with my current employer.  I was included on the spreadsheets from the bank requesting information (hols/bank details/Nat Ins details etc) for all transferring staff.

As an area manager I was not offered a cashier role by the bank but told I could apply for jobs as an external candidate. Three hours after the closure of the last agency, I was sent an email by the bank telling me that I was not going to be transferred but would continue to be employed by my current employer – impossible as the company was set up purely to run agencies for that bank and would cease trading on that day.

 My employer wrote to the bank to confirm that I was included in the organised grouping/was fully assigned to the bank’s agencies and should transfer with the other staff/be made redundant. I have an enhanced redundancy package as a senior manager and I feel that the bank are trying to wriggle out of paying me that plus PILON and outstanding holidays. Two weeks after the last agency closed, I was sent a blank payslip (no monetary amount) by then bank with a payroll number on it, but they have said that was a mistake!

As the agent had 22 staff when the closures were announced, albeit in different locations in the UK, should this have been considered for consultation as "one establishment/one company" and therefore employee representatives been voted in and consulted with by the bank?

How can a decision be made to take someone out of the pool of organised grouping three hours after the final closure has taken place? Surely the production of a payslip is evidence of a transfer and therefore I should be able to claim unfair dismissal at tribunal/civil court?
 

Legal advice:
 

Adam Partington, solicitor, Speechly Bircham
 

Given the fairly complicated set of circumstances you describe I think it would be helpful if I clarify how I interpret your description.

My understanding is that the Bank (B) had a contract with an Independent Agent (IA). The IA employed individuals to run local agencies. It is not clear to me what employees did at these local agencies or what those local agencies did for B. B did not employ these individuals. You worked for IA as an area manager.

B terminated its contract with IA. This meant that IA had to close down (along with the various local agencies) because IA had no other clients other than B. A number of the individuals employed by IA transferred across to B under TUPE by way of a service provision change. It is not clear to me whether you are the only individual employed by IA who did not transfer to B. B decided to employ some individuals directly who had previously been employed by IA.

Those employees whom B could not employ were made redundant by B. Only B consulted with the individuals about the transfer and the redundancies – IA did not consult with any individuals (including you). You had been involved in consultation meetings and told you would transfer to B and be made redundant unless you found a job with B (which you did not) or you stayed with IA. At the last minute B told you that you would not be transferring to it. IA thought you should have transferred.

You believe that B is saying that you should not have transferred to it to avoid paying you an enhanced redundancy package. Two weeks after the last local agency closed you were sent a blank payslip by B but B says this was an innocent mistake. You say that this is evidence that you had transferred to B.
In essence, you want to know the following:

(i) Because 22 staff were employed by IA across different sites did this trigger collective consultation obligations meaning that B should have organised the election of employee representatives and consulted through these representatives with you?
(ii) Should you have transferred to B?
(iii) Can you claim unfair dismissal and if so against who?
Given the complexity and length of your question it is only possible here to give you an overview of the issues, but you should obtain specific legal advice.

First, a service provision change is a “relevant transfer” under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) which triggers a number of obligations. In essence a service provision change occurs where a client (here that would be B) engages a contractor (IA) to do work on its behalf and either reassigns such a contract to a third party or brings the work "in-house". In the present case, I understand that B is bringing back “in-house” those services which IA was providing.

I am unable to confirm that a service provision change under TUPE in fact occurred in the circumstances you describe as I do not know to what extent the services retained their identity.

Assuming, for present purposes, that there was a service provision change, particularly since both IA and B seem to agree that there was one, both IA (as transferor) and B (as transferee) should have invited the affected employees to elect employee representatives with whom they could then provide information to and undertaken consultation with in relation to the transfer or measures anticipated. This obligation under TUPE arises irrespective of the number of affected employees. If B anticipates that it will make 20 or more employees redundant as a measure, the collective consultation provisions under the Trade Union and Labour Relations Act 1992 (TULCRA) will have taken effect.

I believe these are the provisions you have referenced when asking about “employees in one establishment”. These collective consultation obligations are therefore determined by the number of employees B anticipated making redundant from one establishment. A number of separate establishments are not aggregated together when determining the relevant number.

IA appears to have defaulted in its obligations to provide information and consult under TUPE if it undertook no consultation. Further, both IA and B would appear to be at fault for not arranging for the election of employee representatives under TUPE. It would be necessary to know more details to give a firm view of this.

Under TUPE, for the employer’s failure to invite elections and inform and consult, claims may be brought by employees affected by the transfer (in the absence of a trade union or employee representative). Claims must be made to an employment tribunal within three months of the transfer or the date of a tribunal order where the tribunal has made an order against the transferor or transferee for failure to inform and/or consult and the relevant party has failed to pay compensation in accordance with that order. The tribunal can award compensation payable to the relevant affected employees of up to 13 weeks’ pay for each affected employee. There is no limit on the amount of a week’s pay.

If obligations under TULCRA are triggered, for the employer’s failure to invite elections and inform and consult, claims may be brought by an affected employee or one dismissed as redundant (in the absence of any trade union or employee representative).  A complaint must be made either before the last of the proposed dismissals takes effect or within three months, starting with the day on which the last dismissal occurs. The tribunal can make a protective award. The maximum protective award is up to 90 days’ gross pay per employee.
 
Obviously a difficulty facing you is working out who your employer is, which takes us on to your second question: whether you should have transferred to B. Assuming TUPE applies, the employment of those assigned to the undertaking automatically transfers to the transferee on their existing terms. This would mean that your enhanced redundancy terms would transfer across to B which would then be bound by them. I do not have enough detail to establish with certainty whether or not you were “assigned” to the undertaking. However on the basis that IA is there purely to provide services to B and B has effectively brought those services in-house, you may well have an argument that you transferred to B. The picture becomes less clear if IA was insolvent. You should seek specific legal advice to explore this further.

Finally, if you should have transferred to B under TUPE, then by not employing you there is an argument that B has unfairly dismissed you. This is because a dismissal of an employee with continuous employment of a year or more will be unfair if that person is dismissed because of the transfer itself or for a reason connected with the transfer that is not an economic, technical or organisational reason entailing changes in the workforce. A claim for unfair dismissal must be submitted to an employment tribunal within three months of the effective date of termination.

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Esther Smith, partner, Thomas Eggar
 

Where to start! This certainly is a puzzle, as most of these situations are, and very often there are no right and wrong answers, just different approaches. 

Here, it seems that if the activity of the agency you were employed by transferred back to the bank, then you should have transferred under TUPE with that activity. If all other employees of the agency did, and the documentation throughout the process supports the position that you should have transferred with them (the issue of the payslip is certainly helpful to you), then you may well have a claim of unfair dismissal against the bank, under TUPE.

If a tribunal find that you did, as a matter of law, transfer then you would be entitled either to compensation based on losses flowing (if the tribunal find that you should have transferred and maintained your salary) or on the basis that you would have been made redundant by the bank post transfer (in which case the award should reflect your contractual entitlement to a redundancy payment, notice pay and compensation for any failure to consult).

All of the questions you raise in your final paragraph are perfectly valid, but not ones that I can easily answer!  However, if I were you I would be seeking some specialist legal advice (not every employment advisor is that hot on the practicalities of TUPE!) and looking to bring a claim, to get some of these questions answered.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.