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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6390
Experience:  15 years experience of advising on employment law matters
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Hi, I am a hospital worker whose department was taken over

Resolved Question:

Hi,
I am a hospital worker whose department was taken over by a private company. I am still under my NHS contract under TUPE. I am contracted to work 37.5 hours per week.
This company wants to bring in a new 13 week rolling rota. On five of these weeks we do over 37.5 hours, and on one week we do ten hours over.
Can they make us do this?
Submitted: 3 years ago.
Category: Employment Law
Expert:  taratill replied 3 years ago.

taratill : Hello my name is XXXXX XXXXX I am happy to help you today. How much service do you have in total and when did the tupe transfer occur?
Customer:

I have 23 years in total, 21 under NHS, and 2 tuped under this new company.

Customer:

The transfer took place Feb/2012

taratill : What business reason has been given and do they propose to pay overtime?
Customer:

They are trying to use the excuse of providing a better service. I say excuse because they cut our numbers down to save money and the service suffered. We get an unsocial payment from 8pm to 10pm so i the new rota has less people on that shift.

Customer:

The rota change is bad enough, but it is the extra hours that concerns us.

Customer:

I undrrstand that our manager came up with this rota, and I have to say, her understanding of TUPE or any employee rights are questionable

taratill : How many people are affected?
Customer:

About 9 at the moment. The general consensus is that they want us to get the hump and leave.

taratill :

Ok thanks, XXXXX XXXXX are aware, when a tupe transfer occurs the basic position is that an employer must take you on on your existing terms and conditions. The basic position is that any change in your terms and conditions will be void as contrary to the TUPE regulations.

taratill :

If the employer goes ahead and changes the terms then they can defend the position provided that they can demonstrate that there is an economical technical or organisational reason 'ETO reason' for the changes to be made. This might be something like cost saving or to avoid future redundancies. Harmonising a workforce would not amount to an ETO.

taratill :

If you are in an unionised environment your union should be fighting your corner as this is what your subs are paid. They should be stating that the changes are void on your behalf.

taratill :

If you are not a union member then you can raise your own personal grievance about this. Ultimately if the changes are made then you can raise a claim. If you are successful then the employer will have to revert to the original terms.

taratill :

If you have any further questions about this please do ask.

Customer:

I agree. I am seeing my union rep today or tomorrow.

taratill :

Good, they should be assisting you.

Customer:

Have we any way of fighting if they use agency/bank to do the unsocial hours shifts?

taratill :

If your terms and conditions are changed then you do have a way of fighting it by saying it is void contrary to TUPE.

Customer:

Sorry to keep asking and I know this vague, but do you have any idea how long our pay would be protected for? It sounds ridiculous but I am quoted with different estimates.

taratill :

Is this a different issue? I don't think you are suggesting they are looking at reducing pay right now?

taratill :

The statute does not give a set time. If a proposal was made to reduce pay then you would be able to bring a claim of unlawful deduction from wages on the basis that it is unlawful to change terms and conditions after a TUPE Transfer. The employer would lose if they could not show an 'ETO' reason for making the change. To reduce pay this would have to be a serious issue such as a genuine need to cut costs to continue running the service.

taratill :

If you have any further questions please ask. I would be grateful if you would take the time to rate my answer. Thank you and all the best.

Customer:

Thanks for your help

taratill :

No problem, please do come back to me in the future if you need to. In the meantime I would be grateful if you would rate my answer as it is an important part of the process.

taratill :

Many thanks

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