Transfer Of Undertakings

[cat woman]

Back in August the Sandwich Bar where I work was sold, the new owner is stating that the contracts we signed by the old owner are null and void because the shop was a L.T.D. and she is trading under her name. I have been looking through the relevent web sites :- ACAS, DTI, TUC, CIPD and Small Business Employment Rules, every one of these sites are stating that when a business is sold the new owner has to honour the contract of the employee's. It also states that we should have had been given a contract of employment within 8 weeks of being employed by an employer, this hasn't materialised either. The other women I work with have said that I should tackle the owner about this employment law as she is even with holding holiday pay which is owed to us, she is saying that the old owner is responsable in paying any holiday wages. This is driving me insane thinking about it, is there ANYONE here who is in the know about which I have just wrote, I really want to tackle this and get my facts right before I TRY and talk to the new owner. Thanks in advance for any feed back. xxx :-)

[january_bug]

OH Cat you poor thing!! I remember when you were miserable under the old owner and then you were so pleased when this new woman took over! Poor you!

here is the relevant legal bit that confirms what you've read about your legal entitlement to a written contract. Just because you haven't received one, doesn't mean things are disastrous. You will still have many rights by statute law and these will be protected. I believe you are entitled to appeal to an Employment Tribunal if she continues to refuse to provide you with a contract.

re TUPE (Transfer of Undertakings) - it does SOUND like you're protected.

This link (if it works, and I hope it does) is written for employERS (well, it's written for lawyers representing employers!) but it should be helpful for you too. It's probably easier for you to look at as you know the exact facts that apply to you.

As usual with employment stuff, I think the key is to know your rights, but take a softly softly approach to begin with. If she is being totally unfair, explain that you are prepared to take this to your solicitor and will not hesitate to do so. Many solicitors offer a free first consultation for employment matters. If you are VERY organised and go in with some very direct questions, they may be able to help you.

There are also ways to get very good representation in court, without the expense of hiring a barrister - so if it got that far, give me a yell and I'll try to help.

Finally - shame on your for mentioning sarnies - you've made me hungry! Seriously though - best of luck, and keep coming back with more questions if you think it'll help! :-)

[cat woman]

Hi january _bug, Thank you so much for your help and the links you have given me, I just had to make really sure of my facts on this legal matter, I will tackle this but I need 100% back - up from the other workers or it will look like I'm a trouble maker and the owner will make it very uncomfortable for me working there as there has already been 1 woman which has left because she didn't "fit in" she reduced her hours so much that it wasn't feasible for her to work there and I know this employee is taking the matter further. I will keep you informed of any developement, Thank you again LOL cat woman xxx :-)

[February]

Hi Cat

My husband is having problems with his employers, he works as a supervisor for a cleaning contractor which transferred under the TUPE regulations earlier this year.He has 5 days holiday due to him and they are saying the other firm should pay him his holiday money, I don't think this is right. He says there is nothing he can do but he works really hard never has time off etc, and I feel he should get these days due to him. Hope you are successful in your case, good luck

[january_bug]

Hey hun,

I consulted another legal expert on this (that sound like I think I'M a legal expert, I don't mean that! lol) and he agrees with what I said - emphasis on the "softly softly" approach. He did, however, point out that it's not actually a CONTRACT you're entitled to, rather "terms and conditions" laying out your rights and obligations. To any normal person, this is a contract, but under technical legal definition, it appears this may not be what you're entitled to. But to be honest, I'd expect the document to look the same, whatever you called it!

[123paul]

It will depend upon whether the business & assets of the old ltd co were sold or the shares in the company itlsef were sold. This will make a differecne & you need to find this out as yr starting point.

[cat woman]

Hi january_bug, I thought a Contract and Terms and Conditions are the same so to speak, and if we were given a "contract" by the old employer surely that contract still stands as a legal document when the Sandwich Bar was sold on to her, she was given these Contracts which we signed as part and package of the sale.

123paul, in answer to your question, she bought stock, fittings ( table,chairs etc ) plus 1 Jiffy Van and a Peugeot Van.

I haven't been into work this last 2 days this has made me really ill thinking about it, she was a breath of fresh air when she took over, but this last month or so she has really showed her true colours, if things are not going her way she talks to you like something she's just stood in, even the customers have noticed how she speaks to us and have said that if she spoke like that to them if they worked there they'd walk out. So you can see my dilemma in approaching the subject of the contracts, thats why I need 100% back-up from the other girls. The only other solution to this is leave and put itdown to life's exsperience! Bye For Now LOL C W xxx :-)

[january_bug]

cat + paul - Paul, please don't be offended by this, but I'm gonna check out what you said. I'm interestd to see how the manor of purchase affects a TUPE transfer. It's not that I'm trying to prove you wrong, it's just that what you said contradicts what I've learned on the subject so I'm going to look into it in order to clarify things both for me, and for cat.

[Miss Zippy]

It doesn't matter that your boss is trading as a sole trader but your previous employer was trading as a limited company; your new employer is still subject to the TUPE regs as j_bug points out. Not all transfers are business are subject to TUPE but I think we can safely say that yours is - the nature of the business is substantially the same, same premises, same staff etc etc.Under TUPE, your new employer has taken on all and any claims, rights and liabilitites owed to you by your previous employer, so she is liable to pay you for holiday pay. With regard to the written contract issue, what you're actually entitled to is a 'written statement of employment', which must cover all the main particulars of your employment. Your contract of employment, however, exists from the moment you start work, irrespective of whether or not written evidence exists.

[shilo]

Hi ... I've been involved with TUPE a bit having taken over contracts and lost them to other companies and in fact I am involved in a transfer now. I agree with Miss Zippy - you are entitled to continued employment under your existing T&C and the new employer is responsible for anything outstanding from your previous employer including redundancy, notice etc if the new employer decides to 'lose' you, like your colleague. If you are forced to leave by life being made difficult etc, your new employer could face a fine of up to �50,000 for wrongful dismissal. Softly, softly is all well and good but you need to protect the job you are entitled to keep under European Law. I always advise my staff to go to the Citizen's Advice Bureau for advice and support. They will guide you or find someone who can and it shouldn't cost you anything. Good Luck !

[january_bug]

PS - Just cos I KNOW there's someone ITCHING to point out my typo... I realise it's "manner" not "manor". :-p :-)

[bruce5755]

Dear j.b. I'm sure no-one gives a fig about your "typo"! I for one would just like to say a big thankyou for all the help you've given to cat! She really is upset about this matter, she doesn't want or need any type of agro at work. She's always been a good, honest, reliable, hard worker who only wants what she is entitled to!

The new owner brought a breath of fresh air to this place, it's so sad how things can change isn't it?

Once again many thanks to you all for your help.

[123paul]

It essentialy determines if there has been a 'transfer' for these purposes. If the contract of employment was with a Ltd co & there has simply been a share sale there has been no transfer of the undertaking (i.e., sale of the business & assets etc.) or of the contract of employment, everyting continues with the same Ltd just with new shareholders. However, I suspect there has been a transfeer in your case as you seem to be describing a changeover from Ltd co to a sole trader.

[cat woman]

Hi to everyone who has so far helped me with good advice on this legal matter. I want to up-date you all on the matter so far, today my boss had me to one side and asked me if there was anything bothering me as she had noticed that I had been quiet and not my "normal" happy self, at first I said that there was nothing wrong, but she kept on asking soooooo I told her!

I said about the contracts being still legal and binding and having recently had 2 days holiday which I was entitled to have with payment was un-paid and that I wanted to know where I stood at Christmas with holiday pay. I told her that to date I have had 6 bank holiday payments and 8 ordinary holiday payments out of the 12 allocated for the year which left the 2 bank holidays at Christmas and 4 still owing.

She is still insisting that the contract are null and void as she bought a business and not "Stars Sandwich Bar Ltd. ( that isn't the shops real name! ) I told her that I knew a 100% that they were legal and had proof, also she said that she wont be paying the 2 bank holidays over Christmas as we weren't entitled to them, I think my jaw hit the floor then! also she said that the young kids she had working there for the last 3mths wont be entitled to any holiday pay either! I told her that it was LAW that we get paid bank holidays at Christmas, she said that she was going to look into it. She is green as grass where Employment Law is concerned, she is talking out of her bum! ( putting it politely! ) You can tell she hasn't run a business, she just hasn't done her home work or she's trying to pull a fast one!.............

[cat woman]

........ Continued.......

She then negotiated a payment deal of the 2 days holiday I'd just taking in cash payment on Q.T.there and then which I took, she then said about the other two holidays owing and is going to pay me those also on this weeks wages, the Christmas holidays she said she is going to honour also. Later she said that the previous employer should have up-dated our contracts that contracts should be up-dated every year, I told her that the only time contracts are up-dated by the employer is when there has been a change in the terms and conditions, she thinks other wise. Then she came up to me and said that she'd phonedbbher husband, and according to the file's which my old employer had given her is that I'd been payed more holidays than I was saying, I told her that I had proof stating other wise as I have all my payslips from day one since working there, she had the cheek to say that he might have paid me cash, I said no way he was as tight as a fish's bum! So now I am going to go through all my payslips to prove her wrong. Sorry about my rambling on, by the way I have decided to join UNISON and I am going to contact ACAS tomorrow, I will keep you all informed of my progress. Thanks again Love cat woman xxx :-)

[january_bug]

Hey Cat et al,

Firstly I'm VERY flattered that a number of you felt my advice was helpful! :-)

Paul - I hadn't had a chance to look up, but I see what you're saying and it is starting to ring a bell!! :-)

Bruce - the typo thing was a friendly jibe at a friend of mine who reads the site and loves to correct my typos! :-p Sounds like Cat's getting a lot of support from you too! :-)

Cat - Spotted your note for me in CB - I'm flattered that you want me to look at this thread again, so here goes!

I think that by going to UNISON and/or ACAS you are doing absolutely the right thing! They have lawyers who are actually qualified!!! :-p More to the point they have lawyers who are specialists in this field.

This may be of interest to you though - it appears that you're NOT entitled to be paid for Bank Holidays! :-s

I'd suggest that you keep quiet for now and let ACAS/ the union do the talking. I don't mean because you have seemingly got in a muddle here I just mean that if things are said by an independent person, it will be done in writing, thus building up a bank of evidence.

ctd...

[january_bug]

ctd...

PS - You may have recently read in the Daily Mail that bosses have to pay for Bank Holidays. This is PURE BUNKUM! My boss spotted this (he's a solicitor, I'm a legal assistant!) and got me to research it. The Work and Families Bill does NOT provide for paid Bank Holidays. Instead, in the "explanatory notes" there is a mention that the government put in its 2005 manifesto to consider this option, but that a full "regulatory impact assessment" will be carried out first. i.e., you might get a legal right to paid Bank Holiday holiday, but not yet!!! I was furious with the Mail for getting workers' hopes up - but the best I can do is tell people the paper was wrong!!!

Must dash - need to leave early for work!

Take care all,

Bug,

xx

[cat woman]

Hi january_bug, Thank you so much for taking the time in having another look at my thread, and giving me advice, guidance and support, sorry if I'm a pain in the bum.

I have decided to join GMB I sent the application form off today, I used to be a member when I worked in another firm which I was made redundent from so I know I will be o.k. with them. I rang up UNISON about joining and that I had a problem at work, they told me that they wouldn't be able to give advice or help me until I'd paid 13 weeks subscriptions. I did consider ASDAW but the application form stated that the subcsription would be taken out of my wages each week and as I dont want my boss to know what I'm up to this just wasn't feasable.

I read your link on bank holidays and I must say that it shocked and surprised me as I have been working now for 35 years and in all that time I have always been paid bank holiday money in my wages in any firm have worked in. My boss has said today that she is going to give out contracts in the new year, ( I'm beginning to wonder how she is going to word the holiday entitlements? )

Well less of my rambling and thank you again, Oh before I go is it true that contracts have to be re-newed each year even if the Terms and Conditions haven't been changed because I've never heard of this policy.

Bye for now Love cat woman xxx :-)