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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 44896
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was TUPEd in November from local council to a private company.

Customer Question

I was TUPEd in November from local council to a private company. In my contract it states I will work a maximum of 6 Sundays a year. My new employer have told me that I will be working 17 Sundays a year from May. I have asked both my employer and my union rep why they can do this, as I believed my contract could not be changed. I have been told that because of a line that states - 'The council may need to change your working pattern, including moving you onto annualised hours, from time to time. You will be consulted about any changes and will be given 28 day notice of such a change.'
This still does not seem right to me. Can someone please let me know if this is correct.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. Have you been given the required notice of the changes?
Customer: replied 1 year ago.

Yes, they told me in March that they are going to start 4th May. I have had a 1 to 1 and going to have an other one tomorrow.

Expert:  Ben Jones replied 1 year ago.
What is your continuous service to date?
Customer: replied 1 year ago.

I started with the council 13th Febuary 2007. I was TUPEd 1st November 2014.

Expert:  Ben Jones replied 1 year ago.
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 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.
If the changes are part of a wider reorganisation which has nothing to do with the transfer, then they may be effective. The longer the gap between the TUPE transfer and any reorganisation, the greater the chance that the causal connection will be broken. However, there is no specific period after which it is safe to say that the connection with the TUPE transfer has been broken, as the test is whether the change is connected to the transfer. The mere passing of time does not of itself break the connection.
Finally, it is also worth mentioning that sometimes employment contracts may try to give the employer a general right to make changes to an employee’s contract. As such clauses give the employer the unreserved to change any term, so as to evade the general rule that changes must be mutually agreed, courts will rarely enforce such clauses. Nothing but the clearest language will be sufficient to create such a right and the situation must warrant it. Any attempt to rely on such clauses will still be subject to the requirement of the employer to act reasonably and can be challenged as above.
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. For you the only way to challenge this would be to resign and make a claim for constructive dismissal. I strongly suggest you go through the internal grievance procedure first though as tribunal should only be used as a last resort.
I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you
Expert:  Ben Jones replied 1 year ago.
Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether you need further help or if I can close the question? Thank you

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