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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48739
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I work for a small recruitment agency. I am on call at the

Resolved Question:

I work for a small recruitment agency. I am on call at the weekend when the office is closed, working from home. The agency has recently lost a large contract to another agency and under TUPE I may be going to work for them instead. However, the role they are "offering" (I put it in quotes as they are still unsure if I am in scope) is quite different to what I am doing now. I currently am on call from 1600 Friday until 1000 Sunday. I get paid £52.00 per shift so £104.00 per week. I probably work a total of 4-6 hours in my shift, taking and making calls. The rest of the time the phone doesn't ring but I am still on-call. The new position will be on call for 12 hour shifts (Saturday 7pm - Sunday 7am) and will be nonstop calls via a call centre. They are not going to pay me any extra as they say "the Ts and Cs of the contract must remain the same) but the job they're offering isn't the same. Can they do this? Many thanks in advance. Any further information you require please do ask.
Submitted: 3 years ago.
Category: Employment Law
Expert:  Ben Jones replied 3 years ago.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. can you tell me how long you have been employed with this agency please

Customer:

Hi there and thank you. Sorry, I should have said that. I've been there almost 13 years.

Ben Jones :

Ok thank you leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded.

Customer:

Thank you.

Ben Jones :

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.

So you can resist the proposed changes and at the same time if it is something you may be willing to accept, you could also try to negotiate an increase in pay to reflect the increase in hours.

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.


Customer:

Hi and thanks for your reply. I'm sorry, it's all so confusing for me though and I don't quite understand your response. Are you saying that they ARE within their rights to change my working conditions so drastically without paying me any compensation for this?

Ben Jones :

Hi I understand, it is a complex topic...the employer can change your terms but only if it is required for an economic, technical or organisational reason and this is a rather limited scope. If the changes are introduced there is no specific rule that says they have to increase your pay but one would haver to look at the hours you did before and the hours you do now and most likely introduce a pro-rata increase to reflect the increased hours. The employer cannot just say that the terms must remain the same and use that as an excuse not to increase your pay, when at the same time they are changing your other terms

Customer:

That's the bit that seems so wrong to me. That they want me to go from working on-call and answering maybe a couple of calls an hour (and sometimes none at all through the night) to being glued to a phone/headset for 12 hours at a time with no extra pay. It just seems very unfair. I do get the impression that they don't actually *want* to employ me and are only doing so because under TUPE law they have to and are trying to make the position as unattractive as possible so I just walk away and look for a new job elsewhere.

Ben Jones :

that may be the case but if you feel pushed pout as a result then you can consider claiming constructive dismissal, this is where you are forced to resign due to their unreasonable behaviour.

Customer:

Interesting. I was under the impression that if I walked away now I would then forgo any and all rights I might have had? My current employer doesn't want to know either, she is saying there will be nothing for me after the 12th Oct. (the date of the transfer) and that she has no money to pay any redundancy either. I feel like they all just want rid of me and it's not fair, not after almost 13 years of loyal service.

Ben Jones :

no it depends on why - if you simply opt out of the transfer because you do not want to transfer then you will just be resigning and that would be the end of it., But let's say you transfer and then the employer unfairly changes your terms, then you could consider resigning and claiming constructive dismissal

Customer:

I suppose it depends on what is considered "unfair". I don't want to opt out of the transfer, I do still want my job. But if I did decide now, a week before it happens, to walk away would I be effectively resigning? Would I need to actually wait until after the transfer happens and see exactly what changes they implement?

Ben Jones :

you could be resigning in anticipation of the proposed changes and that could still allow you to claim constructive dismissal, but obviously that would only work if you know that the changes will definitely be introduced rather than it just being a possibility

Customer:

Do you think it would be better to stay see exactly what changes they do put into effect as I've had nothing in writing yet?

Ben Jones :

yes that would be recommended as then you know exactly what you are faced with and will have a better chance of justifying why you had to leave

Customer:

Thank you. I do have other questions also (hope that's okay). They have also mentioned training for the new position as it's a different agency and operates slightly differently. As it's a night shift position they've said about hiring a hotel room for a couple of nights locally so I can be trained during a "live" shift, so to speak. I assume they would need to pay me for this?

Customer:

Also, the new position I will be covering/assisting with all their contracts all over the country, not just the contract they've taken over from my old agency. Are they okay to do that too?

Ben Jones :

Hi, the initial 10min session has unfortunately expired, you should have received a message about that quite recently

Customer:

I'm sorry, what do you mean by "expired"? Are you unable to assist me any further?

Ben Jones :

you only get 10mins of chat when you start the question, you would have received a message when the time expired so if you have further queries after that you can either extend the time for an extra fee or post a new question. I kept the chat going for some time after the initial 10 mins ended but with more additional questions I will have to either draw this to a close or alternatively I would of course be happy t help if you extend the chat time. Sorry it's site rules I have to follow the

Customer:

Oh okay then, thank you. I can't afford to pay an extra fee so I'll leave it there then.

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