Some of you must have experienced this. I have some employees who will be TUPEing soon. They have C2W. HR are saying they will need to repay the outstanding as though they had resigned. Seems wrong to me. Anyone experienced that?
Very much a guess but, did the original how agreement give the employer the option of terminating it to be repaid immediately?
If so then the new employer can, I suspect, do exactly that.
If not it would stand to reason when TPUEd the existing terms would be carried forward as the c2w would be one of the terms of their previous contract? Can't see how they could reasonably argue the ending of the c2w wasn't directly related to the transfer.
No direct experience/explicit knowledge though sorry and judging from your own posting history I suspect you've very much more informed guesses than I.
Your C2W can transfer your scheme under TUPE if:
Your employer current and future has an account with the C2W admin scheme
They let you do it
Of course your employer could just be a dick about it too.
TUPE basically means that they move across and and keep their current terms of employment for a certain amount of time (think its 2 years minimum).
Either they are not being TUPE'd or HR is wrong.
Depends if its some kind of merger or not?
Probably hinges on whether the C2W scheme is contractual or not. Trouble is the employer still owns the bike, it's only hired to the end user, it only becomes yours if you buy it at the end of the period. I would imagine as it's the employers bike they could just expect it to be returned and you've lost all the money you put in. Great scheme in principle but the detail was not in the employees favour.
TUPE basically means that they move across and and keep their current terms of employment for a certain amount of time (think its 2 years minimum).
I was TUPEd earlier this year and that's how it was explained to me (though C2W wasn't involved). They can add to your contract but can't subtract. Length of service carries over too.
Whether they can or not though, it's a bit of a dick move by your employer.
current terms of employment for a certain amount of time (think its 2 years minimum).
Even then as I understand it they have to (at least pay lip service to) prove that the change is not a result of the tranfer.
Eg they can't just reduce your holiday allowance at day 731 because all their non transfer employees get less.
Of course they can theoretically fire rehire you at 731 on a different contract though...
Regarding the non contractual bit, we get an extra day off for our birthday but it's not in our contract, that wouldn't TUPE across but our core holiday allowance would as that's in our contract.
Probably hinges on whether the C2W scheme is contractual or not.
It's usually listed as an employee benefit. Not always but usually.
Trouble is the employer still owns the bike
I'd call their bluff on that to be honest, which I suppose is pretty much my answer to poly.
Even if they're in their rights to do so, I'd simply say no and see what they plan to do about it. If their argument is it's a company asset that I had previously been entitled to make private use of and they'd like it back, I'd point them towards tupe and say denying that use is a change of my Ts and Cs. If its not a company asset then they're sort of stuck asking me to pay for it aren't they?
Probably hinges on whether the C2W scheme is contractual or not.
This. It probably isn't.
Rather than repay, the employees could just threaten to hand the bikes back. I doubt HR will want to deal with that so it might back them act more reasonably.
Probably hinges on whether the C2W scheme is contractual or not. Trouble is the employer still owns the bike, it’s only hired to the end user, it only becomes yours if you buy it at the end of the period. I would imagine as it’s the employers bike they could just expect it to be returned and you’ve lost all the money you put in. Great scheme in principle but the detail was not in the employees favour.
Tend to agree with shortwide John TBH
OP many repayments will you have made at point of transfer? If few then that's your best bargaining chip. Ask them where they'd like you to leave the bike on your last day.
To all those quoting TUPE leg and terms and conditions etc.... the new employer may indeed be obliged to offer C2W, but could quite easily say " yep fine, which bike do you want? We'll start the 12 month contract on your first month with us."
Legally speaking that would be exactly the same offer as the one he is currently on. The fact that his old employer might have given him the old bike is explicitly and adamantly not part of C2W. Otherwise it would fall under Hire Purchase law.
PS. Well done OP for coming up with a newC2W question. Rather than the usual " can I top up my voucher"
Shirley if it really is a "transfer of an undertaking" that would include the bikes? Or to put it another way, if the bikes are not included it isn't a transfer, in which case the employees have been unfairly dismissed. Well, that would be an argumemt to run to frighten the horses and force some reason on the situation.
Shirley if it really is a “transfer of an undertaking” that would include the bikes?
No, unless it's contractual. I very much doubt it will be.
I led a TUPE transfer recently and we negotiated for the new employer to offer c2w, but they were not obliged to do so. Fortunately no-one was using the scheme at the point of transfer so the OP's issue didn't arise.
I guess a lot of this will depend on how they see the process going.
Knowing I'm out on my ear in 2 years? No free teabags in the kitchen anymore and I'm on my way to ACAS.
Expect the job to be there and my long term prospects to be good? Can we come to a more agreeable arrangement.
Buy a cheap POS from ebay and give them that back, they porbably don't know what bike people have any way!
Thanks folks. I'm hoping to cut this off at the pass before the staff even have to consider it. For HR people who have seemingly done dozens of TUPE's before they've certainly not got much of a clue. (I think they have only TUPE'd in before and not out).
benpinnick - thanks for confirming that mechanistically it is possible. I don't really care whether they HAVE to under TUPE, its just the right thing to do, especially as some of the affected employees entered the scheme when the employer, but not the employee, knew TUPE was a realistic employee.
No, unless it’s contractual. I very much doubt it will be.
My loose wording. What I meant was, for it to be legally a transfer, the contract needed to include the bikes, as they are part of the "undertaking". No bikes, no TUPE would be the (probably a bit shonky but a runner) argument.
For those asking there is no contractual obligation for the old employer to provide C2W to employees. Of course, those who have entered a salary sacrifice arrangement are under a contractual obligation.
Greyspoke - I think you might have a possible argument, are the bikes on the asset list being transferred... ...to be honest the values are so low in the grand scheme compared to the lawyers and accounts costs in sorting it I'm hoping someone might simply "forget about it", but the HR person doesn't like to be wrong.
but the HR person doesn’t like to be wrong
Hr people are never wrong. They're like management consultants they'd never get into hr if the possibility of their being wrong ever occurred to them.
Contractual terms & conditions are key here; if the employees have a cycle to work scheme as part of their individual contracts, then the incoming employer must meet those terms. It's easy to set up a Cyclescheme account, for example.
There is no time limit to TUPE, incidentally. TUPE terms & conditions can apply 20 years down the line, for example, if an employee hasn't changed their working practices ubder their request. Any changes to an employee post-transfer at any time must have TUPE taken into account, otherwise it makes a mockery of the legislation in the first place.
For those asking there is no contractual obligation for the old employer to provide C2W to employees. Of course, those who have entered a salary sacrifice arrangement are under a contractual obligation.
Yep, but not an employment contract.
Difference between taking over an existing arrangement over a bicycle and promising to take on new arrangements.
