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taratill
taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6305
Experience:  15 years experience of advising on employment law matters
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I cover two different adjoining districts (A & B)for client

Resolved Question:

I cover two different adjoining districts (A & B)for client home visits, in my work, although my base is in one of those areas (A), close to my home (3miles) and has been for 9.5 years. I claim mileage from my base (A). My employer (1) wants me to now be based in 2 areas part time with a new employer (2). A & C will be my new areas (C being 36 miles away with a very difficult journey taking a minimum of around 1.5 hours each way prior to any client visits). They want me to be based in two locations. Area B will be done by another member of my team as it also adjoins another area - D. The other member will be employed by a new and different employer all together (3). My questions are is this first of all TUPE, is it unreasonable for me to say no due to distance as it's a huge change for me, and is it a redundancy situation? My current employer (1) says I am essential to service and although they have given me what my severence figures (I am not adverse to being made redundant), they are now saying I am essential to service. P.S. I also have disabilities which they are aware of. Any advice would be gratefully received. Thank you.
Submitted: 2 years ago.
Category: Employment Law
Expert:  taratill replied 2 years ago.
taratill :

Hello my name is ***** ***** I am happy to help you today. Is your employer's business being taken over by another company and what does your contract say exactly about Place of Work?:

Customer: Hi Jenny, my name is***** you for your time this morning. The employer I work for is going to pay new employer to complete the service I provide along with my other colleagues in other districts whom are all currently employed by employer 1. My job description doesn't state a place of work but dies say to work flexibly and to provide cover for other districts.
taratill :

And you have never had to cover other districts for the entire time you have worked i.e. 9.5 years?

Customer: Incidentally although my colleagues are I are currently employed by the same employer now once we are TUPED we will all have different employers. None if us will have the same employer as we will be employed by different "sub" districts.
Customer: I have occasionally had to cover some client visits due to sickness in the district adjoining mine.
taratill :

Ok thanks can you explain your disability to me and the impact that this has on your ability to carry out your job and the impact of it on working, as proposed by your employer, in the new districts?

Customer: I'm not sure that this is relevant. Could you please let me have your view without the disability issue?
taratill :

Well if it has an impact on your ability to carry out the job then it is relevant. I am not able to give you full advice if you are not prepared to give me the facts. It may or may not be relevant without understanding the situation I cannot advise you on whether your employer has any obligations in law as regards ***** *****

taratill :

I am happy to advise just on the contractual issues if you like.

taratill :

I would suggest that you raise a grievance to your employer on the basis that whether tupe applies or not , which it appears to in this case, the employer is not entitled to change terms and conditions without notice.

taratill :

Whilst your original contract required you to be 'flexible' being required to change your area altogether is clearly a change in terms and conditions and is unlawful if it is imposed without notice.

taratill :

On the basis that you are being outsourced to a new employer to do this work then TUPE will be relevant and any attempt to change your terms and conditions post a TUPE contract is void.

taratill :

You should raise all of these issues with your current employer in a grievance and see what their response is.

taratill :

If the employer insists on going ahead and you are transfered to the new employer and the new terms are imposed then you can raise a claim in the employment tribunal.

taratill :

It is not a redundancy situation unless then need for a person to carry out your role has ceased or diminished. This does not appear to be the case on the basis of the information you have given me, rather it appears that it is simply a change of location.

taratill :

Your disability may be relevant as a disability may impose a duty on the employer to make reasonable adjustments which may include keeping travel time to a minimum. I cannot comment on this further as I do not have details of your disability.

taratill :

If you have any further questions please do ask.

Customer: Thank you for this info. I feel that they are being unreasonable in expecting me to travel that far when I only travel 3 mikes each way which takes me 10 mins tops where it would take me at least 1.5 hrs to travel to the new part time office. There are other members if staff who live closer. They will not "swop" with me so I'm stuck with it. My employer tells me that's it's in my JD that I should cover other areas and that if I don't do it them I'm resigning. It's very unfair and detrimental to me and my domestic arrangements - I have a don under 16 years. My disabilities are Addison's disease. Hypothyroidism (unable to tolerate standard meds), Diverticular disease, spondylosis - spine, neck and back ( I had this when I was employed by them they provided me with a special chair), costochrondritis, low grade Ménière's disease, fibromyagia. I manage these conditions myself and struggle to work everyday. I go home to bed as they all tire me out. I cannot tolerate sitting for long periods. I need to move about but if course this cannot be too much. I know that I cannot travel the distances they expect of me and work as well. I have been to the occupational health dept and so my employer knows about these disabilities. I have a blue badge too. I have no sickness record however I have been off with stress since end if July and my medical conditions have worsened. Formal Consultation commences next week.
taratill :

HI I would suggest that you add the disability issue to the grievances and say that as disabled person their suggestion subjects you to a disability.

taratill :

sorry should have said subjects you to a detriment.

taratill :

You can also say that it is a reasonable adjustment for them not to expect you to travel when you could work close to home as you have done in the past.

taratill :

If you are forced to resign then you can claim constructive dismissal and disability discrimination.

Customer: I hear what you are saying about redundancy however they are going to take 50% of my current job off me and give it to someone else when they are closer to the new area than me.
taratill :

Hi it doesn't matter that it is given to another person. If the job still exists (albeit done by someone else) it is not a redudnancy situation from an employment law point of view.

taratill :

I am about to go offline as I need to go to a meeting. If you have any further questions I will be happy to answer them on my return. If I have answered your question I would be grateful if you would take the time to rate my answer.

Customer: Thank you for clarifying about redundancy. I don't see how they can let me have reasonable adjustments when I can't go over to complete the client visit?
taratill :

the reasonable adjustment would be to allow you to remain at your current location. I think there is a discrimination and a breach of contract argument that you can raise and I would advise you to raise a grievance in the first instance. If that does not result in a change on mind then come back to me for further advice.

taratill :

I need to go offline for a meeting now. I am happy to answer your follow on questions on my return (midmorning). I n the meantime I would be grateful if you would take the time to rate my answer. Many thanks.

Customer: Thank you for this. Can I just clarify what you mean when you refer without notice - info given at 7.38? They will be giving me notice - a formal consultation next week. Also 7.39 what do you mean by .... Post a TUPE contract is void? Just so that I am 100% sure of what I am saying please? Also can you please advise if I should raise a grievance after I have the official consultation document or before although I have a letter from HR saying that the new district is the proposed transferee employer? Many thanks.
Customer: I have been looking at a case like mine on the internet this morning looks similar to mine? Abellio London v Musse - it's about the distance they want the employee to move and the time taken for the new travel. His work was still at a new location. There's also another one - Tapere - about detriment and it being 2 miles away.
taratill :

Hi , you have not yet been given formal notice of a change in terms and condiitons, this cannot be done until after the consultation period has taken place. Contractual notice would be a week per full year of service.

taratill :

Any attempt to change your terms and conditions (even with notice) after a TUPE transfer is unlawful under the regulations (this is what I meant by void). If after a tupe transfer your contract is changed then you can bring a claim in the Employment Tribunal for a declaration that your employer should stick to your original terms.

taratill :

The cases you refer to support my earlier advice that you should raise a grievance and that it is unreasonable for you to be asked to move. It does not mean there is a redundancy sitaution though as the need for someone to do your job at your exisitng location still exists.

taratill :

I would suggest you raise a grievance as soon as possible. If you can do it before the consultation then you should.

taratill :

If you have any further questions please do ask.

Customer: So basically, my existing employer has to tupe me over in with my current areas? And if the new employer changes my areas then that's unlawful under tupe and the distance is unreasonable as it's detrimental to me? My current employer HR dept have said that my proposed new areas are different - so I assume it's the new employer telling them this already? So to clarify I'm raising a grievance now to object to the new employer changing my areas or my current employer for allowing the new employer to do this? I'm feeling confused. It's hard on messages to be clear. Your time is much appreciated.
taratill :

Yes you are absolutely right. It is unreasonable under normal contractual principles and is also discriminatory as it subjects you to a detriment on the basis of your disability.

taratill :

If there is anything further you would like to know then please ask. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.

Customer: Thank you.
taratill :

no problem please do remember to rate my answer as I am not otherwise credited for my time. Please do come back to me in the future if you need to and all the best.

taratill, Solicitor
Category: Employment Law
Satisfied Customers: 6305
Experience: 15 years experience of advising on employment law matters
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