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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47376
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Good afternoon. I work in the NHS. I transferred from one Trust

Resolved Question:

Good afternoon. I work in the NHS. I transferred from one Trust to another 5 years ago with a Tupe agreement. Part of the agreement was that I continue working permanent nights. My boss is now trying to change the agreement. She has decided that she doesn't want permanent night staff. Can she do this? I have worked permanent nights since I joined the NHS 10 years ago. Joy
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

What do you hope to achieve please?

JACUSTOMER-evwmie4v- :

I want to continue working nights & hope that you'll be able to tell me that my Tupe arrangement stands, please

Ben Jones :

OK, thank you, XXXXX XXXXX this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you

JACUSTOMER-evwmie4v- :

Thank you.

Ben Jones :

Thanks for your patience. If TUPE applies to a transfer, those employees assigned to the transferring business will move to the new employer on their existing terms conditions. Simply put, the new employer will 'step into the shoes' of their old employer and the employees should continue working for the new employer as if nothing had changed, apart from the name of their employer.


 


The above is the ideal outcome, although post-transfer difficulties may often arise. For example, the new employer may wish to try and change some of the incoming employees’ terms and conditions. However, under Regulation 4(4) of TUPE any such changes are automatically void, unless the employer can show they were in no way connected to the transfer or if they were necessary for an economic, technical or organisational reason (ETO reason) subject to employee agreement or the terms of the contract permitting the change.


 


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 a person'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 changes so harmonisation will rarely be used as a justifiable reason.


 


If the changes are part of a wider reorganisation which has nothing to do with the transfer, then they may be effective. The longer the gap between the TUPE transfer and any reorganisation, the greater the chance that the causal connection will be broken. However, there is no specific period after which it is safe to say that the connection with the TUPE transfer has been broken, as the test is whether the change is connected to the transfer. The mere passing of time does not of itself break the connection.


 


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.

Ben Jones :

Before you try and exit chat can you please let me know if your original query has been answered or if you need me to clarify anything else in relation to it before I close this at my end?

Customer:

I've not heard that the NHS is reorganising, however, I know that they prefer staff to cover all shifts, although they have a lot that don't. Where I work they take on new staff & some are allowed to refuse to work nights. One member of staff who started when I did was given a contract for nights only because he couldn't work days, so they rather seem to pick & choose as to what they allow. If I'm forced to change I will probably have to leave as my lifestyle does not lend me to working long days. I only have 3 years left before I retire & I was hoping to be able to continue with my usual shifts. Would I be able to claim constructive dismissal if I had to leave?

Ben Jones :

Constructive dismissal is really the only option here, however your success will depend on the employer managing to show that the changes were either not due to the transfer or that they were necessary due to an ETO change. Whether they can successfully defend that and what evidence they provide is impossible to predict at this stage

Customer:

Ok. Thank you for your help. Now we just wait & see. Fingers crossed!

Ben Jones :

Here too, all the best!

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