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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47889
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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My compant changed habds, I was transfrered under TUPE, this

Customer Question

My compant changed habds, I was transfrered under TUPE, this included 8 weeks company sick pay, I was recently off for 8 days back in Feb 2013, the regional manager has refused to up hold the TUPE rights and has taken the decission to refuse me this pay, I have not exhausted my sick pay in the last 12 months. Can this manager ignore such rights I have never signed their contract as with other colleagues remain on my old contract
Submitted: 4 years ago.
Category: Employment Law
Expert:  Ben Jones replied 4 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know how long you have worked there.

Customer:

I have worked for the company for 6 years the company i work fr now won the contract based on the TUPE agreement

Ben Jones and other Employment Law Specialists are ready to help you
Expert:  Ben Jones replied 4 years ago.
has the employer said why your sick pay has been rejected?
Customer: replied 4 years ago.


For Ben Jones: No he has not given a diffinitive reason, other than he has decided not to honour the payment, speaking to his manager the company actually dont like paying such benefits, so has quite simply said no.

Expert:  Ben Jones replied 4 years ago.
If TUPE applies to a transfer, then the transferring employees will move to the new employer on the same terms they were employed under just before the transfer. Simply put, the new employer will 'step into the shoes' of their old employer. This means the employees will preserve their continuous service with the employer and can expect to transfer their contractual terms and conditions over.

The new employer may sometimes wish to try and change the transferring employees’ terms and conditions of employment. However, under Regulation 4(4) of TUPE any such changes are void, unless the employer can show they were in no way connected to the transfer or if they were required for an economic, technical or organisational reason (ETO reason).

Some employers may try and justify changes by arguing that they are needed due to harmonisation and therefore rely on an ETO reason. However, Government guidance and case law has restricted the application of harmonisation as a genuine reason to amend one’s terms of employment. Harmonisation will only be a valid reason if there is a change in the workforce and this must involve change in the numbers, or possibly functions, of the employees. In practice, relatively few contractual changes would involve such a change in the workforce so harmonisation is unlikely to be used as a justifiable reason.

It is for the employer to prove that a proposed change is permissible under TUPE and if there are concerns that the changes cannot be made, this can be challenged by raising a formal grievance first and then considering making a claim in an employment tribunal. In your case you have not been provided with a justifiable reason for why your old terms and conditions have been changed and as such you may challenge it if necessary.