Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long is your continuous service, including the job before the transfer?
were the hours you worked up until now contractually defined?
As set number of working hours per week. ie 36
what about the times you were expected in work?
They were not written into the contract. I think just defined as hours per week.
Would their refusal of my request be considered unreasonable?
how long were you doing these times for and why does the employer want to change them?
I worked these times for around 1 year. They said the reason was to be in line with other employees who werent TUPE. They work 0830 till 1700 and some 0800-1600
Do I have a case that their decision is unreasonable, in your opinion? Ie Tribunal or constructive dismissal?
ok let me get my response ready please
yes but I am getting my response ready as mentioned
There are a couple of angles to approach this – one is under the TUPE legalisation and the protection offered by that, the other is the flexible working request.
If TUPE applies to a transfer, those employees assigned to the transferring business will move to the new employer on their existing terms and 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 issue here is that the specific working times are not defined in contract and have probably not been worked long enough to become an implied contractual term. Therefore you may find it difficult to claim that the employer is now trying to change a contractual term and as such may not be able to rely on the protection under TUPE.
When it comes to the flexible working application, an employer can only reject it on a limited number of grounds. These are:
In addition, the employer has a duty to explain their rejection in writing. They must state why the specific business ground applies in the circumstances and include the key facts about their decision. These should be accurate and relevant to the reason used.
However, when selecting the ground for refusal the test is a subjective one on the part of the employer. If the employer considers that one of the grounds applies, then the test is satisfied. The test does not create any requirement of reasonableness into the employer's judgment. It would appear that only if the employer's view is based on incorrect facts, could the decision actually be challenged.
Therefore, if the employer has not relied on one of the set grounds to justify their refusal, or the facts they have used are incorrect or unreasonable, the decision can be appealed first before a formal grievance is raised. If that does not help, a claim can be made to an employment tribunal. The available grounds to challenge their decision are:
The claim should be presented to the tribunal within 3 months of either the procedural breach or of the date on which the employee is notified of the appeal decision.
How strong is my case? Briefly
I would say less than 50%...TUPE protection is unlikely t apply and unless you can show the employer had not followed the correct flexible working procedure, then they are able to reject your request as long as they can say it falls within one of the specified reasons
you are welcome
How do i finish?
just select a smiley face, or if they do not work as there is sometimes a delay in enabling them you can just type your choice here, thanks
thank you, ***** ***** best