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TUPE! Help needed urgently please

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  • TUPE! Help needed urgently please

    Hi everyone,

    I have been a superintendent/pharmacy manager for an independent pharmacy for last 6 years, working full-time and got paid through my Ltd company, with a contract for provision of locum services in place for all these years. (which was all instructed by the owner)
    Last year I was told by the owner that the pharmacy was put in the market for sale, but due to drop in profit every year and also being a 100 hour pharmacy there was no offers.

    Recently I have found out (through someone else) that it is under offer now (but not been told anything about it by the current owner yet!)
    In my contract it mentions that either party can give 4 months notice for termination of contract.

    However someone told me I should be entitled to TUPE (after the new owner takes over) which I don't know much about apart from what I've researched on internet. And someone else is telling me if the new owner wants to get rid off me they will make it as difficult as possible to make me leave! On one hand I don't really want to get into any conflict with the current or next owner, and on the other hand I think I deserve to continue with my job at this pharmacy.

    At the moment my contract is due for renewal and I can ask the current owner to start paying me by payslips and not as self-employed.

    As you can see it is a difficult situation and I am very confused right now and not sure what to do! I would really appreciate your comments on this matter please.

    Many thanks

  • #2
    I am curious to know if a Superintendent can be self employed and act as a locum. If you are self employed could you be a Super to more than one company?


    • #3
      If you are in the PDAU you could ask them for an opinion.
      Of the top of my head - if you are a contractor to the company, which is what is sounds, then you have no TUPE rights as you are not directly employed.
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      • #4
        Lovely jubly.

        A personal service company to presumably avoid paying so much income tax and national insurance?

        If this is the case it's like the manager who wanted to use penalty clauses on his locum and wondered why I was calling him out.

        TUPE applies on how things are on the day of transfer.

        TUPE applies to employees, however the definition is wider than people think. There is some technical case law on the matter. You need specialist advice from a union official.

        I doubt very very much the current owner or new one will want to formally make you an employee...


        • #5
          If you worked full time as a locum for same company then Tax officials will claim you are employed.


          • #6
            Agreed, and if your boss hasn't been paying the proper nic they will back date it. Unless you can prove you have locum shifts elsewhere I think. We have a full time locum who does one shift every blue moon for asda to keep her self employed status.


            • #7
              Originally posted by johnep View Post
              If you worked full time as a locum for same company then Tax officials will claim you are employed.
              Of course they will because it's a morally dubious tax 'efficiency', of which they come up against every day of the year. As a moderator has cottoned onto this wheeze I absolutely love the four months notice bit.

              It's the 'nature of the relationship' that matters.

              TUPE applies to more than just employees, it applies to other undertakings too. The definition of employee for TUPE is slightly wider than in other areas.

              The issue is even if the undertaking applied to the other company, the same terms would apply and they could cancel it just like that (although where precisely this falls in the not related to the transfer is unclear).

              You really need some advice from a union official (probably not the PDA as they are a little niche union).


              • #8
                If you are self-employed TUPE does not apply as a Pharmacist unless you shouldn't be self-employed and then that could cause you and your current 'employer' serious issues with HMRC. Being a self-employed Superintendent will not fulfil IR35 requirements. In my personal opinion on assessment you will be classed by HMRC as employed.


                • #9
                  I'm being messaged by the PDAU again!

                  So I'm going to clarify my comments.

                  TUPE is something that needs specialist advice. Yes, really. I've been through TUPE in pharmacy. I have done TUPE consultations.

                  The PDAU is the 27th largest trade union in the land, which I would call very small compared to the big four ones I've been in. Big is not always good. Both unions I have been involved in had, unfortunately quite a few dealings with pharmacy. For some reason the PDAU seem to want to compare themselves to the BMA, which is also small, but which some others call the most effective union in the land. Why would a small union maybe not get on that well with TUPE? Commonality of a specialist area. The big ones deal with TUPE all the time. Also this is my experience as a rep, is that it's skilled bodies on the ground and how near an office/how easily contactable someone is that also matters. One of the unions I was in claimed to have all manner of 'experts' at head office, but if you can't get hold of them or they won't travel it's as useful as a chocolate teapot.

                  The PDAU say they are growing from a small base, so on that I will agree that when unions are growing it's when they put in the work and you get better reps, better officials and so on. When deals etc are signed, it's when you have to watch out and complacency sets in and especially after some years. Some would say I'm very cynical.

                  Pharmacy is an interesting one as businesses pharmacies do swap hands over the years on a fairly regular basis, so I'm guessing this is where the PDA are coming from saying they have specialist TUPE lawyers and knowledge. So yeah give them a call if you're a member. Or if anyone else is.


                  • #10
                    It is time the GPhC revisited SP requirements and role. Most certainly to clarify if SP can just be a locum and not an employee.


                    • #11
                      BrianA, gives sound advice.
                      I can see how a Superintendent can be self-employed, but NOT also a full-time, or nearly so, locum at the pharmacy where they are Superintendent. I've known people who were Superintendents but didn't work full-time for the companies for which they were Superintendent. I seem to recall one at least who only visited the small company occasionally, although he received money for acting as Super,
                      The BBC have, IIRC, got themselves and their staff into serious bother with HMRC over having what are effectively full-time employees working through Limited Companies. Further, if a business is taken over, then a contractor..... someone supplying services to that business...... may be able to renegotiate that contract but its not a given. TUPE (full name Transfer of Undertakings (Protection of Employment)) applies to employees..... employment, the clue is in the word.


                      • #12
                        When redundancies start, the first to go are those not directly employed by the company.