Transfer to new Company (within same "group")

schmoo2k

I have been asked to transfer to a different company within our global organisation.

The global organisations incentive is that they recently acquired a new company in Dublin and will be able to streamline payroll etc.

Since I am currently the only employee left in my current company (I am a home worker reporting to UK / USA offices) this seems like a perfectly reasonable request.

Since the new company in Dublin is not taking over or acquiring the current company none of the TUPE rules seem to apply (they plan on winding down the current company).

Further (and this is the bit that has me concerned) they are asking me to voluntarily resign from my current company and simultaneously sign a new contract from the new company.

My issues/questions:
1 - The new contract is similar to, but not the same as my old contract (which is something they would not be able to do under TUPE)
2 - They are planning on inserting some new clauses to protect my statutory rights and I can't see how this is possible?
3 - Is there not a "better" way of handling this?

And off course HR want it done by end of week.

Thoughts?

vandriver

If they make you redundant,is your time in the first company going to be recognised for both statutory redundancy and notice period?
Is this going to be in writing?

schmoo2k

Yes - from the companies point of view - they will put in writing my length of service etc.

but

From the Irish governments point of view I can't see how that will stand - my hypothetical test case is this:
* I sign new contract and "transfer"
* New company in Dublin goes out of business in 1 month
* I go to the Irish government looking for my statutory entitlements, I can't see how they will be obliged to honor the contract between myself and the company, they will just look at my "actual" length of service?

vandriver

What would happen if you refuse to resign?

schmoo2k

Not sure how it would play out, I have no objection to it in principle, but am frustrated that there isn't a mechanism under Irish law to simply transfer the "responsibilities and undertakings" from one company to another - similar to TUPE.

Peregrinus

schmoo2k wrote: »

Not sure how it would play out, I have no objection to it in principle, but am frustrated that there isn't a mechanism under Irish law to simply transfer the "responsibilities and undertakings" from one company to another - similar to TUPE.

There is. It's called the European Communities (Transfer of Undertakings) Regulations 2003.

The new company doesn't have to take over or acquire your current employer for the Transfer of Undertakings Regulations to apply.

If the new company is taking over from your current employer the business activities which involve/include the particular functions that you carry out, then the Transfer of Undertakings Regulations apply, your employment transfers, your rights are protected and you do not need to sign a new contract. The fact that they're not acquiring the company is irrelevant; if they're acquiring the undertaking, or part of the undertaking, of the company that's enough to engage the application of the Transfer of Undertakings Regulations.

The fact that they're asking you to sign a new contract would suggest to me that they're not taking over the activities of your current employer, and you will be filling a new role with the new company, but nothing in your OP suggests that this is so.

So my first question to them would be "Why are you asking me to sign a new contract? Why am I not protected by the Transfer of Undertakings Regulations?" "We're not acquiring the company that currently employs you" is not a full answer to this question.

If you're in a trade union, now would be a good time to involve them. (If you're not in a trade union, now would be a good time to think about whether you should be, but that won't solve your immediate problem.)

On the plus side, you can't contract out of your rights under the Transfer of Undertakings Regulations, so if you are covered then signing a new contract shouldn't deprive you of your statutory rights - in principle. In practice it will reinforce what may be a misconception on the part of your new employer.

Obviously you don't want to make too much trouble over this, but you also want to protect your position. Consider telling them that you think your situation comes with the Transfer of Undertakings Regulations and, if they don't agree, asking them to insert a clause in the contract to the effect that it is not intended to exclude, substitute for or negate any rights you may have under the Transfer of Undertakings Regulations

schmoo2k

Is that regulation the same as TUPE as they dismissed that since they weren't acquiring the business as whole?

I think your point is that it also applies for "partial" cases i.e. my one position, I am going to go back through my emails and see why they dismissed it.

Time for some "lite" reading...

Thank you I really appreciate your insight and time spent on this!

Peregrinus

TUPE is the usual acronym for the UK regulations which deal with this - the full title is Transfer of Undertakings (Protection of Employment) Regulations. The Irish equivalent is the European Communities (Transfer of Undertakings) Regulations.

Both sets of regulations were passed to implement an EU directive, and they are very similar, though not identical (since the directive gives member states some leeway, and different member states may implement it in slightly different ways). Given that you're in Ireland but your current employer is in the UK, it's possible that there's an issue about whether your rights are regulated under the UK regulations or the Irish regulations - it's beyond my pay grade to answer that. And I suppose it's also possible that the UK regulations don't cover a case in which the new employer is not taking over a "business as a whole". And of course I don't know exactly what it is that your new employer is taking over.

In short, I think you've reached a point where, if you need advice tailored to your circumstances (and you're not a member of a trade union) you're going to have to pay for it.