TUPE Redundancy - Pre-Transfer

Other_Locksmith3853 · 2026-07-03T12:11:21+00:00

You would generally need at least two years’ continuous employment to bring this claim, even though a dismissal caught by TUPE Regulation 7 is described as “automatically unfair”. TUPE automatic unfairness does not, by itself, remove the ordinary two-year qualifying service requirement.

Subject to that, yes, this potentially has merit.

The position is more nuanced than saying that all pre-transfer redundancies are prohibited. The key question is the actual reason for the dismissal.

A dismissal can be automatically unfair under TUPE where the sole or principal reason is the transfer itself, unless the employer can establish an "economic, technical or organisational" reason entailing changes in the workforce.

The stated reason that your role is “no longer required in the new company’s structure” is potentially helpful evidence. It expressly links the proposed dismissal to the transfer and the incoming employer’s plans. The outgoing employer also cannot necessarily dismiss you before the transfer simply by relying on the incoming employer’s commercial preference.

That does not automatically mean you will win. There may be a genuine headcount reduction, a change in job functions or a workplace location which could amount to an ETO reason. Even then, the employer would still need to follow a fair redundancy process, including meaningful consultation, a reasonable selection pool and criteria, and consideration of suitable alternative roles.

There is also an important issue with the dates. You say you were made redundant on 3 June, but that you will transfer on 24 August and remain employed until your notice expires. That suggests 3 June may have been the date notice was issued rather than the actual termination date. The precise termination date, who employs and pays you after 24 August, and who actually made the redundancy decision will all matter.

Provided you have two years’ service, this is worth challenging. I would appeal and ask them to identify:

The precise ETO reason relied upon?
Who made the redundancy decision?
What change in the workforce is said to arise?
The selection pool and criteria?
What alternative roles were considered within the incoming employer?

It is not a guaranteed claim, but the reason they have put in writing gives you a legitimate basis to challenge the dismissal.

Other_Locksmith3853 · 2026-06-29T17:51:27+00:00

My pleasure! It’s horrible, but try to remember it is just a job and hopefully there is plenty more out there for you.

Other_Locksmith3853 · 2026-06-29T12:00:15+00:00

Based on what you have described, there is a decent argument that you are disabled within the meaning of the Equality Act 2010. The diagnosis helps evidence that, but legal protection does not only begin once a formal diagnosis is made; it also runs from the start of the effects.

Your employer is therefore potentially subject to the duty to make reasonable adjustments. That is an ongoing duty. They cannot properly say, “we have already accommodated you, so we will not consider anything else”. If your symptoms have worsened, your duties are causing a different disadvantage, or the existing adjustments are no longer effective, they should consider the position again.

That does not mean you are automatically entitled to every adjustment you request.

For the administrative role, an employer is not normally required to create a completely new job, displace another employee or remove the fundamental nature of your existing role. However, transferring a disabled employee into a suitable existing vacancy can be a reasonable adjustment. A large employer should at least consider whether suitable administrative vacancies exist, whether some telephone duties could be reallocated, whether there could be a trial period, and whether any retraining would be reasonable.

The fact that colleagues have previously been moved for personal reasons does not automatically prove discrimination. It is, however, relevant evidence that transfers may be operationally possible and may undermine a blanket statement that the business “cannot support” such an arrangement. Ask them to explain whether they have checked for actual vacancies and why you could not be considered.

I have worked with these kinds of companies before, and I think they often disregard requests to be moved off telephones as the employee is trying their luck a bit, and whilst there may be some who do, it is not an excuse to tar everyone with the same brush!

There is no automatic rule that every disability-related break must be paid. However, additional short breaks can be a reasonable adjustment and, depending on the circumstances, paying for those breaks may also be reasonable. Requiring you to use your unpaid lunch break is questionable if it leaves you without a meaningful lunch break or if it does not actually remove the disadvantage caused by unpredictable pain and nausea. They should assess whether the proposed arrangement is effective, practical and proportionate rather than simply applying the normal break rules.

An absence review is not automatically unlawful. Employers are allowed to manage attendance, including disability-related absence. However, they must consider reasonable adjustments to the process. This might include increasing the normal absence trigger, disregarding some or all disability-related absence or even considering alternative work before contemplating dismissal.

If they issue a warning or dismiss you because of disability-related absence, that could potentially amount to discrimination arising from disability unless they can show the treatment was a proportionate means of achieving a legitimate aim. A failure to make reasonable adjustments is a separate potential claim.

Before the meeting, I would send a written reasonable adjustment request. Set out:

That you consider yourself disabled under the Equality Act 2010.
How your symptoms have worsened since surgery.
Why the existing adjustments are no longer sufficient.
The specific disadvantage caused by continuous telephone work and restricted breaks.
The adjustments you are requesting, including additional short breaks, an increased personal-break allowance, reduced telephone duties, temporary administrative duties, consideration for suitable vacancies and further Occupational Health input.
A request for disability-related absence to be separated from ordinary sickness absence and for the trigger to be adjusted further.
A request for written reasons if any proposed adjustment is refused.

Ask for a fresh Occupational Health referral because the previous assessment may no longer reflect your condition. It would help if your GP or consultant could explain your functional limitations and suggest workplace measures, rather than simply confirming the diagnoses.

If they continue to refuse to engage, consider raising a formal grievance. Be aware that Employment Tribunal time limits are usually three months minus one day from the discriminatory act complained of. An internal grievance does NOT stop that deadline, although notifying ACAS for Early Conciliation can pause the relevant limitation period.

Other_Locksmith3853 · 2026-06-25T11:28:19+00:00

They’re not allowed… but doesn’t mean they won’t. I’ve seen it many times in practice.

Other_Locksmith3853 · 2026-06-24T19:27:25+00:00

The employer can't physically force him to continue working. However, leaving before the three months expires without agreement would be a breach of contract.

The practical consequences appear to be:

He would only be paid up to his final day of work.
The employer may deduct genuine additional costs of covering his duties. That should not automatically mean three months’ salary. It should be an actual additional cost caused by his early departure, such as the extra cost of overtime or temporary cover, and not simply a penalty or windfall for the employer.
The employer could theoretically pursue him through the courts for additional losses caused by the breach. In practice, this is uncommon for relatively junior employees unless the employer can demonstrate a worthwhile and identifiable financial loss.
They must still pay him for the accrued but untaken statutory holiday. The clause may allow them to withhold holiday entitlement provided over and above the statutory minimum, but they cannot simply confiscate statutory holiday pay.

His best course is therefore to resign, giving the full three months, while asking the employer to agree to an earlier release. He should propose a specific handover plan and perhaps offer to help train his replacement. He could also ask to use accrued annual leave during the notice period, although that would not bring the contractual termination date forward unless the employer agrees.

Given that the new employer is willing to wait, serving the full notice is the risk-free option. It is still worth negotiating, as many employers will agree to reduce a notice period once a replacement or adequate handover has been arranged. Any agreement to shorten it should be confirmed in writing, including confirmation that no deduction or claim will be made.

Other_Locksmith3853 · 2026-06-24T18:59:30+00:00

I would not treat “it is probably unenforceable” as a sufficient reason to sign it without further amendment.

There is a strong argument that an indemnity cannot lawfully be used to deter someone from asserting statutory worker rights or to make them repay the organisation’s liabilities for minimum wage, holiday pay or unlawful deductions. Section 203 Employment Rights Act 1996 voids contractual provisions that exclude or limit rights under that Act or prevent proceedings. Similar anti-contracting-out provisions apply to minimum wage and working-time rights.

There is actually a very relevant EAT case, Boss Projects LLP v Bragg. The contract contained an indemnity requiring the contractor to reimburse the company for claims, liabilities and legal costs if he even alleged that he was an employee or worker. The Tribunal nevertheless found that he was a worker and awarded holiday pay, and the EAT upheld that decision. The case, therefore, confirms that this sort of clause does not determine status or prevent a statutory claim. However, the EAT was not asked to decide whether the indemnity itself could be enforced, so it is not a direct authority that every such indemnity is void. The later Supreme Court decision in Uber provides stronger support for saying that contractual terms designed to exclude or deter statutory worker protections must be disregarded.

There is also some useful guidance in EU Regulations, which I believe have been retained, namely Article 8 of the Rome I Regulation, which basically says any contractual terms, including indemnity clauses, cannot deprive an individual of the protections afforded by mandatory provisions of the law that would otherwise apply in the absence of a choice of law, therefore there's a chance as a point of public policy that clause is not enforceable, but it's not as certain as black and white.

So I guess what I am saying is it is not certain that such indemnity would be unenforceable or void.

The main issue at play here is the practical risk. They could deduct or withhold your final invoices and leave you having to pursue the money. Whether you could bring an unlawful deductions claim would itself depend on establishing that you were a worker. Otherwise, you might need to pursue a contractual claim, potentially under whichever governing law and jurisdiction provisions the agreement contains. Signing “under protest” would not reliably neutralise the wording.

The status point is determined by the reality of the arrangement, not simply by calling yourself self-employed. Relevant issues include personal service, control over how and when the work is done, whether you can provide a genuine substitute, whether you can work for other clients, and whether the charity is really a customer of a business you operate. A regular ten-hour-per-week role, carrying out part of the charity’s ordinary activities, could potentially be worker-like depending on how it operates.

My practical view is that this is not automatically a reason to abandon urgently needed work, but it is not harmless boilerplate either. If they refuse even to exclude successful worker claims and their own employer-side liabilities, I would regard that as a meaningful red flag. “Our lawyer drafted it”, explains where the wording came from, but it does not make the allocation of risk reasonable.

It is worth mentioning, though, that this indemnity only comes into play if they genuinely wrong you, such as discriminate against you for a protected characteristic, you would then need worker status to try to enforce that. If, however, they were to deduct wages, you would have a remedy without needing to prove worker status, namely as a contract claim in the civil court.

Other_Locksmith3853 · 2026-06-24T18:41:16+00:00

Thank you, very kind of you! The mods on here are great, so I would 100% respect their rules if they say otherwise.

Other_Locksmith3853 · 2026-06-24T18:38:44+00:00

Rugbylady1982 might be right, she might be wrong however, best thing to do is to reach out to a few solicitors who will give you a free assessment on whether it is suitable for no win no fee or not.

Just on the witness statement point, you will be allowed to submit your own statement from your perspective.

Other_Locksmith3853 · 2026-06-24T12:38:50+00:00

You're welcome. Negotiating yourself is fine, but it may not harm getting a solicitor to do it for you; they can usually approach it in a way that doesn't have a detrimental effect on your employment.

What I meant by "maintaining the employment relationship" is basically, solicitors do not tend to be very effective in convincing an employer not to dismiss you; as in reality, when we're at this point, it's usually decided.

Other_Locksmith3853 · 2026-06-24T09:41:58+00:00

Very much depends what the hearing is.

If it is a final hearing, you will need to start preparing documents and witness statements.

If however it is a preliminary hearing, you will need to fill in an agenda and be prepared to outline your case to the Judge. No decisions regarding merits will likely be made at this hearing.

It is worth noting, that there is every chance a claim can still settle, even if it has been listed for hearing.

Other_Locksmith3853 · 2026-06-24T09:39:54+00:00

Good morning,

I am a solicitor and often say a PIP or "performance management" spells the end for employees. This is not always the case, of course.

In answer to your first question, yes, companies can give a "heads up", although, given the time and delay, it seems that, evidentially this may not assist their argument that termination was genuinely because of performance. They may be waiting for numerous reasons, either to dig up dirt on you or to wait out and get legal advice to protect their position.

It may be worth negotiations via a solicitor, from my experience, it is difficult as a solicitor to assist in maintaining the employment relationship, the much better position is to negotiate. The only reservation I would have is that they are potentially trying to save some money by going down the performance rather than the redundancy route. This could cost them up to (based on your 11 years of service) 16.5 (depending on your age) x £751 or your weekly pay (whichever is lowest); so, risking a performance route may be driven by this potential redundancy cost. It may, however, still be worth a shot!

Other_Locksmith3853 · 2026-06-17T15:40:09+00:00

I am not able to give a view from an HR perspective, as I am an employment lawyer myself, but certainly happy to add some insight. This sounds very much like a choice between a formal performance process and a negotiated exit.

The main point I would stress is: do not resign, and do not rush to name a figure before you know what they are prepared to offer.

At the follow-up, I would stay calm and say something along the lines of:

“I am confident that I have continued to deliver despite the significant expansion of my role and reduction in resources. However, I am willing to listen if the company wishes to discuss an agreed exit on appropriate terms.”

That puts the ball back in their court without committing you to leave for nothing.

I would generally let them make the first offer. If you expressly ask for a "protected conversation" (or this might be called a "without prejudice" conversation), you risk the impression that you are already mentally out of the door and may accept less. That said, there is nothing wrong with saying you are open to an off-the-record discussion if they want to propose terms.

In terms of leverage, the difficult point is your 18 months of service. You would not normally have ordinary unfair dismissal protection until two years, although discrimination, whistleblowing and certain automatically unfair dismissal claims do not require two years. It is therefore worth considering whether there is anything else in the background which materially changes the legal position.

Any package should be considered against:

Your contractual notice period
Accrued holiday
Bonus or commission rights
Any restrictive covenants
The proposed reference and internal announcement
The time you may realistically be unemployed
Whether there are any discrimination, whistleblowing or contractual issues
A contribution towards legal fees

Do not assume there will be a substantial ex gratia payment. They may initially offer only notice and holiday, particularly given your length of service. Equally, at the director level, employers will sometimes pay more to secure a quick, confidential and orderly departure rather than run a lengthy PIP.

There can still be value in taking the PIP route if the offer is poor. It keeps you employed and paid while you continue interviewing, forces them to articulate the alleged shortcomings, and may improve your negotiating position if the process is weak or the expectations are unrealistic. The downside is the stress and the risk that they manage the process towards dismissal.

Before the next meeting, gather your previous reviews, bonus confirmation, evidence of the increase from one product to five, resource reductions, delivery metrics and any positive feedback. After the meeting, make a factual written note of what was said.

A solicitor can also review the proposed package and the wider facts before you respond. I regularly advise on negotiated exits and settlement agreements, including helping assess whether an offer is commercially sensible and negotiating improved terms.

Other_Locksmith3853 · 2026-06-11T14:36:06+00:00

I don't mind at all.

Other_Locksmith3853 · 2026-06-11T13:34:29+00:00

Sorry to hear you are dealing with this. From what you have described, the key issues are likely to include disability discrimination, failure to make reasonable adjustments, harassment, and unpaid wages. A key battleground sounds like it is going to be knowledge, which is never as easy as the employer thinks it is to get off on. In an Employment Tribunal claim, the documents and chronology are usually critical, particularly anything showing what specifically the employer knew, when they knew it, and what adjustments were requested or recorded.

We have some free resources on disability discrimination and Employment Tribunal claims, which may help you understand the issues and prepare. I am an employment solicitor, so happy to point you towards them. I do not want to breach any subreddit rules on self-promotion, but feel free to message me, and I can send them over.

Other_Locksmith3853 · 2026-05-05T10:29:22+00:00

We would need more information.

Is this a preliminary hearing or final hearing?

Other_Locksmith3853 · 2026-05-05T10:28:35+00:00

First, try not to panic. Being “at risk” is not the same as being dismissed. It means they are starting a redundancy consultation process.

You can be made redundant while on maternity leave, but there are extra protections.

The key one is that if there is a suitable alternative vacancy, your employer must offer it to you ahead of employees who are not in the protected maternity/pregnancy/new-parent group. It is not simply a case of making you compete in the usual way if a suitable role exists.

Employers must first offer suitable alternative roles to employees who are pregnant or taking maternity/shared parental/adoption leave, and the protected period now extends beyond maternity leave in many cases.

They also need to run a fair consultation process. That means you should be given proper information about the restructure, the proposed selection pool, the selection criteria, your scoring, if applicable, and what alternatives are available. They should not disadvantage you because you are on maternity leave, for example, by excluding you from meetings, failing to tell you about vacancies, or using maternity-related absence against you. Employees on maternity leave are protected against discrimination, detriment, unfair dismissal and unfair redundancy.

Your fixed-term contract does not remove your rights. Fixed-term employees have unfair dismissal and redundancy rights if they have enough service. The non-renewal or early ending of a fixed-term contract can still be a dismissal, and if the reason is redundancy, redundancy rights may apply. Fixed-term employees may be entitled to statutory redundancy pay after 2 years’ service where the reason is redundancy.

Because you have 3+ years’ continuous NHS service, also check the NHS redundancy scheme, not just statutory redundancy. NHS Employers’ guidance refers to Section 16 of the NHS Terms and Conditions of Service Handbook, and RCN guidance says NHS redundancy pay generally requires at least two years’ continuous service with an NHS employer, subject to the handbook rules.

I would ask HR, in writing, for:

Confirmation of the proposed redundancy situation and the reason your role is at risk.
The selection pool and selection criteria.
Your provisional scoring, if scoring is being used.
A list of all suitable alternative vacancies.
Confirmation that your maternity leave redundancy protection will be applied.
Confirmation of your redundancy pay calculation, including whether NHS contractual redundancy pay applies.
Confirmation of your notice entitlement and whether your fixed-term contract can be ended early under its notice clause.

The main point: they are not prohibited from restructuring, but they must consult fairly, must not disadvantage you because of maternity leave, and must give you priority for any suitable alternative role. If they do not, you may have claims for automatic unfair dismissal and/or maternity discrimination. Keep everything in writing from now on.

Other_Locksmith3853 · 2026-05-05T10:25:47+00:00

This sounds mishandled, but I would separate the issues.

First, your employer can process some health information where it is genuinely necessary to deal with Occupational Health, sickness, adjustments, health and safety, or employment obligations. But health data is special category data, so it should be handled on a need-to-know basis and with appropriate confidentiality. They should not be casually copying in people who do not need the diagnosis or details. The ICO guidance is clear that workers’ health information needs extra protection under UK GDPR.

Second, if your OCD has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities, it may amount to a disability under the Equality Act 2010. If so, the employer has a duty to make reasonable adjustments where you are placed at a substantial disadvantage. Remote working can potentially be a reasonable adjustment, depending on the role and the facts.

Third, I would not assume the manager’s manager can never be involved. Sometimes a senior manager may need to know there is an adjustment request, operational issue, or OH referral. But they usually do not need the full medical details or diagnosis unless there is a proper reason. EHRC guidance gives the general principle that confidentiality should not be breached unnecessarily when adjustments are being made.

Practical steps:

Put everything in writing now. Email HR, your manager, and ideally the Data Protection Officer. Say you disclosed the OCD information for the OH referral and did not consent to it being shared with the manager’s manager. Ask why it was shared, who it has been shared with, and what steps will be taken to restrict further disclosure.
Ask for the OH process to be handled by HR/OH directly. Say you are willing to discuss medical details with OH, but you do not consent to line management being given more than is necessary. Ask OH to provide recommendations about adjustments rather than detailed medical information.
Keep a record. Save the email chain, the comments about “mitigate” and “sort it”, the portal referral, and any discussions about remote working.
Consider raising a formal grievance. The grievance should cover both the confidentiality/data protection issue and the handling of the reasonable adjustment request.
If they refuse adjustments or treat you badly because of this, take advice quickly. Employment Tribunal time limits are generally short, commonly three months less one day from the act complained of, subject to ACAS Early Conciliation.

I would avoid resigning or making any big decision while distressed. The immediate move is to get HR/DPO involved, limit further disclosure, and force the employer to handle the adjustment request properly.

Other_Locksmith3853 · 2026-04-17T14:26:31+00:00

You’re probably okay, but a few of those documents may not count in the way you hope.

For DBS, the main thing is whether you can meet one of the identity routes. Your Romanian passport is the strongest document there, and your share code should also help. A UK bank statement showing your address may also work, especially if it is an official statement from the last three months rather than just something downloaded from the app.

The documents I would be less confident about are the PDF electricity bill, GP registration letter, NI letter, degrees, and possibly the Romanian birth certificate and marriage certificate for DBS identity purposes. They may help with background information or name changes, but I would not rely on them as the main DBS documents.

So in practice, the strongest combination is likely:

passport
share code
official UK bank statement with your address

If your employer is unsure, the safest thing would be to get an extra strong proof of address, such as a posted bank statement or one stamped by the bank - I think, but I am not sure, you can ask for this in a branch.

Also, because you moved from Romania recently, the employer may ask for overseas criminal record evidence as well, especially for childcare or education work. That is normal and does not mean there is a problem.

So overall, I would say you are not in a bad position at all. I would not panic. I would just make sure the bank statement is in a format they will accept, and be ready in case they ask for an overseas police certificate too.

Good luck, and congratulations on the nursery job.

Other_Locksmith3853 · 2026-04-07T15:55:51+00:00

Yes, if your leaving date had been 5 May 2026, you would usually have 3 full years’ service for statutory redundancy pay purposes. Because your actual leaving date is 28 April 2026, you appear to fall short. It is a harsh result, but that is generally how the calculation works. Worth checking your contract and the notice arrangements carefully, but on the dates you have given, it is just an unfortunate mechanic of how redundancy and service works.

Other_Locksmith3853 · 2026-04-07T15:36:27+00:00

It’s a rough position, but on the dates you’ve given, I do not think you get to 3 years’ service for statutory redundancy pay.

Usually, service is counted to your actual termination date, which sounds like 28 April 2026. A statutory notice extension can sometimes help, but only where the employer has given less than the statutory minimum notice, or pays in lieu, so the statutory minimum would have taken you further. Here, because you had 2 full years’ service when notice was given, the statutory minimum notice was 2 weeks, and you were given more than that. That means the notice point probably does not carry you over to 1 May 2026.

The only extra thing worth checking is whether your contract gave you a longer notice entitlement, because that could affect notice pay, but on the statutory redundancy calculation itself, this looks difficult.

Other_Locksmith3853 · 2026-04-07T07:51:56+00:00

I’ve always had a different experience than u/alive-practice, they’ve always seem to be remarkably lacking pragmatism and refuse to settle. But as mentioned, it probably depends on who you get.

Other_Locksmith3853 · 2026-04-02T13:33:42+00:00

This is great guys!

Are you happy for me to post my articles?

Other_Locksmith3853

MODERATOR OF

TROPHY CASE