Newport Cleppa Park

[Neil]

To those who may be affected by this-TUPE can be a distressing time, make no bones about it, I know exactly how you feel.

What the employees should know

The Transfer of Undertakings (Protection of Employment) regulations implement a European directive in force in other EU countries. Tupe's aim is to protect employees' rights on the transfer of a business operation from one employer A to another B. On a transfer, employees of A:

Automatically become employees of B from the time of the transfer. They remain on the same terms and conditions of employment that they held with A

Can claim automatic unfair dismissal if dismissed by A or B for any reason connected with the transfer (either before or after it) if they have one year's continuous employment. If A or B can show that the reason for the transfer was redundancy, a dismissal will not be automatically unfair but must be fair and reasonable

Have the right to be informed and consulted about the transfer via trade unions or employee representatives of A. If these obligations are not carried out, and affected employees bring successful employment tribunal claims, they may be awarded up to 13 weeks' pay;

Can object to becoming employed by B so that they do not transfer and their contracts of employment terminate with A (without compensation).


Tupe applies to a transfer of a business operation from one organisation to another or on the outsourcing of a function where the operation is situated in the UK immediately before the transfer. It may also apply on a subsequent transfer to a third party - a second generation contracting out. Tupe is likely to apply where there is similarity between the activities carried out before and after the transfer, tangible assets (buildings or movable property) or intangible assets (goodwill or intellectual property) are transferred and employees transfer.

In situations where operations move offshore, UK employees of the transferring employer may also face redundancy. Where an employer proposes to make 20 or more employees redundant at a business site within three months, employees have the right to be consulted via trade unions or employee representatives at least one month before the first of the dismissals occurs. The financial compensation for inadequate consultation being carried out by a transferring employer is up to 90 days' pay.

On a Tupe transfer, although liability may have passed to employer B, complaints made to an employment tribunal should refer to both employers. It is for the tribunal to decide which, if either, is liable.

Kathryn Clapp is a solicitor at international law firm Taylor Wessing.
E-mail k.clapp@taylorwessing.com

What the employers should know
Traditionally, English law viewed an employment contract as a private matter between employer and employee. If the employer sold the business, the workforce could be made redundant. The new owner could offer to re-employ the
ex-employees on less favourable terms. Tupe established new principles:

The transfer of a business (or "undertaking" in Tupe's language) automatically transfers the employees to the new operator (but the employee has a right to "opt out", terminating his employment without right to compensation)

All of the employer's rights, duties, and liabilities in connection with the undertaking's employees' contracts transfer (except some pension rights) including the employees' outstanding claims against the old employer

Any employee dismissed "either before or after a relevant transfer" automatically has a claim for unfair dismissal "if the transfer or a reason connected with it is the reason or principal reason for his dismissal" (although there is a defence if the dismissal was for an "economic, technical or organisational reason")

Employers have a duty to inform and consult employees affected by a proposed transfer.


If a transfer is caught by Tupe, the new operator of the "undertaking" becomes responsible for the continuing costs and termination costs (including compensation for unfair dismissal) of any employees who are not retained. If Tupe does not apply, the costs remain with the existing employer. The regulations prohibit "contracting out", so the old and the new employers cannot stop the effects of Tupe where it applies even when they don't want the regulations to take effect (but they can privately agree to reimburse each other for any liabilities, for example by giving indemnities).

Tupe applies to voluntary transfers of an undertaking where there is an agreement between the old employer and the new employer (when a business is sold or an employer decides to outsource part of its requirements). It can also apply to involuntary transfers where there is no direct relationship between the old employer and the new employer, for example, where outsourced work is taken over by a new contractor.

Employers and contractors have to be particularly careful where any activity is carried out in a new way: where an existing function is outsourced to an external supplier; where a function currently outsourced is taken back in-house; or where a new contractor is appointed and the services of the old supplier dispensed with, for example on a competitive re-tender. In any of these cases Tupe is capable of applying.

No one factor is decisive in working out if Tupe applies. All the relevant circumstances must be considered. In the last few years the court judgements interpreting Tupe have been a little more consistent than in the past, and now it is usually possible to form a clear view whether Tupe applies in any given circumstances (and sometimes to carefully structure arrangements so that Tupe will not apply). Even so, a number of cases are referred to the European Courts for interpretation each year.

http://www.google.co.uk/search?sourc...F-8&q=tupe+law

Give me a shout if you need any help/info on TUPE etc.

[orangebird]

Originally Posted by Neil

Trust ntl to give you something, but not put in your contract.

How underhand, & unprofessional.

That's the word Neil - it's 'given' to us as a perk. It's not a contractual agreement because not all associates live on net. It's not underehand or unprofessional at all, it's a nice perk if you can get it.

To all you ntl'ers affected by this - The guys in IT and Site Services didn't get a bad deal when they went over to IBM and Profectus (respectively). Hope it all goes well for you

[Pierre]

Originally Posted by orangebird

That's the word Neil - it's 'given' to us as a perk. It's not a contractual agreement because not all associates live on net. It's not underehand or unprofessional at all, it's a nice perk if you can get it.

To all you ntl'ers affected by this - The guys in IT and Site Services didn't get a bad deal when they went over to IBM and Profectus (respectively). Hope it all goes well for you

Except, of course, that profectus went into liquidation - causing much messing about and worry.

[orangebird]

Originally Posted by Pierre

Except, of course, that profectus went into liquidation - causing much messing about and worry.

That was profectus' problem, not ntl;'s. They don't have a crystal ball.....

[Pierre]

That was profectus' problem, not ntl;'s. They don't have a crystal ball.....

I don't dispute that, but I was just replying to your post that advised the the people who were outsourced to Profectus and IBM got a good deal.

I would argue that the Profectus guys didn't... that's all.

[Escapee]

Originally Posted by orangebird

That's the word Neil - it's 'given' to us as a perk. It's not a contractual agreement because not all associates live on net. It's not underehand or unprofessional at all, it's a nice perk if you can get it.

To all you ntl'ers affected by this - The guys in IT and Site Services didn't get a bad deal when they went over to IBM and Profectus (respectively). Hope it all goes well for you

It may of been given to some as a perk, but was part of the contract for people working for some companies that ntl took over!

This is always the big problem with takeovers, the same happened with the perk on free copmpany car fuel. I had it written in my original contract along with some other senior people in the company that I worked for which got taken over by ntl. What happened is they took it out of my contract because they said it was a free perk to all employees with a car anyway.

I made my concerns pointing out that in time they would do away with it and I would be worse off, as usuall with ntl's actions I was not far wrong as the perk was done away with shortly after I left ntl.

I am just giving it as a warning to anyone who finds themselves in a similar position.

[slimshady]

Hmm, sounds to me - with ntl your better off out than in !!!!

[orangebird]

Originally Posted by slimshady

Hmm, sounds to me - with ntl your better off out than in !!!!

That depends on the dept you work for and what benefits/perks you would like from a company. ntl aren't the best employers in the world by a long shot, but their benefits/perks/discounts etc they offer would take some beating.

[Neil]

Originally Posted by orangebird

That's the word Neil - it's 'given' to us as a perk. It's not a contractual agreement because not all associates live on net. It's not underehand or unprofessional at all, it's a nice perk if you can get it.

Really?

You think that offering staff a perk, but not putting anything in writing is professional do you?

There is no way that is professional, & I 'll bet the people who will now be losing that perk & having to pay for it due to ntl's unprofessionalism & lack of documentation would agree with me as if ntl had documented it like any other professional company, then all the peeps who are getting TUPE'd across would still be getting their perk.

[Neil]

Some 'facts'....

STATEMENT

Since the formation of the new ntl: home and COBI teams earlier this
year, we have continued to review how each part of the business works.

With this in mind we are announcing some changes to the ntl: home Internet
team today, which will become effective from 22 March 2004.

What is being announced today?

The current ntl: home Internet team is being restructured to fit with
the new ntl: home and COBI structure.

This means some of the current functions may also move into Networks and
Group IT.

What is changing?

Wholesale Internet managed by Paul Rusby, moves to Networks.
Wholesale has closer synergies with the Networks wholesale group.

Retail Internet remains in ntl: home and will be managed by Bill
Goodland.

Retain our focus on the residential side of our Internet business

The Operations & Continuous Improvement team managed by Phil Langley,
which currently sits in Retail, will move to COBI reporting to Mark Upton.

COBI's focus is on customer service improvement and this team forms part
of that.

Our Newport Narrowband Call Centre will be outsourced to Fujitsu - all
our associates will transfer to Fujitsu from 01 May 2004. The relationship
between Fujitsu and ntl will be managed through COBI.

This specialist call centre services our Virgin, Tesco, Which and ntlworld
customers. Fujitsu are leaders in the dial up internet call centre management field therefore, in order to deliver the level of service our customers require we are putting this aspect of our business in their hands.

What happens next?

Today our associates are being briefed on the changes above. The changes
will take place from 22 March 2004, with the exception of the transfer
of the Newport Call Centre, which takes place from 01 May 2004.

Please brief your teams on the changes outlined above

Many thanks


Aizad

Q&A

What are the changes being introduced?

Ntlworld dial-up, Tesco. Virgin, Which support will be serviced by
Fujitsu.

Fujitsu are a specialist provider of dial up technical support centre
services and will work in conjunction with COBI.

When will the change become effective?

Newport Associates are being briefed today, with the changes effective
on 1st May 2004, in terms of their employer.

What does this mean for ntl's customers?

There will be no change to the current customer experience and services
provided via a Newport.

If you should receive a call from a dial-up customer, existing processes
still apply.

What does this mean for Newport Associates?

Newport Associates will remain at Newport, providing the services to our
customers, as is the case today, however from 1st May our colleagues
will commence their employment with Fujitsu, under what is referred to as a TUPE process.

What does TUPE mean?

Quite simply, TUPE is government legislation, which ensure that
employee's terms and conditions are protected, in the event of transfer to another organisation.

It stands for Transfer of Undertaking (Protection of Employment).

What does this mean for TSB?

TSB moved into the COBI structure in February '04, and this remains
unchanged.

I've taken a call from the local press, what should I do?

You should simply direct them to Malcolm Padley's office on 02077464094
for
External PR..

[slimshady]

hmm - so their moving Wholesale Internet /again/

It started out as like Internet back in the days of
Cable Online then later NTL Internet and then they put it in Business
then they took it out and put it in Home and now its going under Networks....

they really do like reorganisations don't they - is it just so they can pay someone to keep redrawing the organisation chart :p

[orangebird]

Originally Posted by Neil

Really?

You think that offering staff a perk, but not putting anything in writing is professional do you?

There is no way that is professional, & I 'll bet the people who will now be losing that perk & having to pay for it due to ntl's unprofessionalism & lack of documentation would agree with me as if ntl had documented it like any other professional company, then all the peeps who are getting TUPE'd across would still be getting their perk.

It IS in writing Neil (on the internal intranet to be precise). Give over. You're starting to sound really bitter about it all. You weren't so fussed about it being professional & documented when you were getting the perks, were you.....

It's a perk for ntl employees. If you work for Fujitsu, you get their perks instead.

[Neil]

Originally Posted by orangebird

It IS in writing Neil (on the internal intranet to be precise).

Oh that's ok then-I'll bet all those people losing their free TV etc will breath a sigh of relief (not)

Give over. You're starting to sound really bitter about it all. You weren't so fussed about it being professional & documented when you were getting the perks, were you.....

That's because I got it in writing.

It's a perk for ntl employees. If you work for Fujitsu, you get their perks instead.

That's not how TUPE works I'm afraid-you should be a bit more informed before you make sweeping statements like that.

*Passes OB a cloth to wipe her rose tinted specs*

It's very simple-because of ntl's failure to (properly) document an associates benefit (it is 100% ntl's fault & no one else's here), those people affected by the Fujitsu scenario now have to start paying for their TV/phone line etc.

Sound fair to you?

Simple sum up-if ntl had documented it properly, then their affected staff would not be worse off.

Surely even you can't defend ntl's obvious failure to document something properly that has now resulted in staff being financially worse off???

[Nemesis]

.... erm .....

Aren't we talking about "perks" of the job ...

These come and go and are never guaranteed, with any job. It's not just NTL that do this type of thing, many others do it too. That's life .. I really don't see this as and NTL thing ... and anyway, are the undocumented perks really why they took the job ?????

[orangebird]

Originally Posted by Neil

Oh that's ok then-I'll bet all those people losing their free TV etc will breath a sigh of relief (not)

They're losing a perk that comes with working at ntl. Not a limb...

That's because I got it in writing.

An A4 piece of paper.....

That's not how TUPE works I'm afraid-you should be a bit more informed before you make sweeping statements like that.

*Passes OB a cloth to wipe her rose tinted specs*

I know how TUPE works Neil, thank you. ntl have gone through the process on a large scale twice before, and did it properly then. I'm sure they'll do the same this time too.

In the meantime, you can leave you cloth where the sun doesn't shine, I don't need it and you of all people should know that.

It's very simple-because of ntl's failure to (properly) document an associates benefit (it is 100% ntl's fault & no one else's here), those people affected by the Fujitsu scenario now have to start paying for their TV/phone line etc.

Sound fair to you?

Yes, it is bloody fair!!!!

To start with, not every associate is on-net at ntl, therefore it CAN'T go into the t&c's otherwise there would be different t&c's all over the place which is bad practice for any company, let alone a company the size and diversity of ntls. It's not a failure to document at all. Why don't you wait and see until the deal is done before spouting off like this? Maybe other perks/benefits/discounts that could be available by working for Fujitsu instead could outweigh the loss of the associate package?

Simple sum up-if ntl had documented it properly, then their affected staff would not be worse off.

As above, why don't you wait and see if they are going to be worse off first? Or is that just too reasonable and not anti-ntl enough for you to deal with?

Surely even you can't defend ntl's obvious failure to document something properly that has now resulted in staff being financially worse off???

Again, as my two responses above.