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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46173
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was TUPE'd to a new company 4 months ago. My working hours

Resolved Question:

I was TUPE'd to a new company 4 months ago. My working hours have been 0700-1600 mon-thu and 0700-1100 fri. Last week i was told my hours would change to 0830-1630 mon-fri. This leaves me in a position where I am no longer able to get a lift to work without paying extremely excessive costs for a train, bus then taxi every day. Its unaffordable and would take several hours each way if I could afford it. I was given a Flexible Working hours application form where I proposed working 0800-1600 mon-fri which would allow me to keep getting a lift to work but today this was denied by my manager. I am now i a position where I am financially unable to travel to work and I need to know my legal options.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Ben Jones :

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?

Customer:

4 years

Ben Jones :

were the hours you worked up until now contractually defined?

Customer:

As set number of working hours per week. ie 36

Ben Jones :

what about the times you were expected in work?

Customer:

They were not written into the contract. I think just defined as hours per week.

Customer:

Would their refusal of my request be considered unreasonable?

Ben Jones :

how long were you doing these times for and why does the employer want to change them?

Customer:

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

Customer:

Do I have a case that their decision is unreasonable, in your opinion? Ie Tribunal or constructive dismissal?

Ben Jones :

ok let me get my response ready please

Customer:

Still there?

Customer:

Hello?

Ben Jones :

yes but I am getting my response ready as mentioned

Ben Jones :

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:



  • Planned structural changes

  • The burden of additional costs

  • A detrimental impact on quality

  • The inability to recruit additional staff

  • A detrimental impact on performance

  • The inability to reorganise work among existing staff

  • A detrimental effect on ability to meet customer demand

  • Lack of work during the periods the employee proposes to work


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 employer failed to hold a meeting, notify their decision or offer a right of appeal

  • The reason for refusal was not for one of the allowed reasons

  • The rejection was based on incorrect facts


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.

Customer:

How strong is my case? Briefly

Ben Jones :

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

Customer:

Ok thanks

Ben Jones :

you are welcome

Customer:

How do i finish?

Ben Jones :

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

Customer:

Ok service

Ben Jones :

thank you, ***** ***** best

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46173
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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