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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
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Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Our company (or portion of it thereof) has just been bought

Resolved Question:

Hi, Our company (or portion of it thereof) has just been bought out by another larger company. we went through a TUPE process and the new employer stated that they do not pay overtime. I pointed out to them that my original contract specifically states that I get both on-call pay and overtime pay. The next set of correspondences came in the manner of "they will honour our on-call payments" as they did in the past.
Now, on-call and overtime are 2 completely different entities here.. i.e. On-Call means you get paid for being On-Call whether it be a night, a weekend or an entire week. You get a flat fee just for being on-call. Overtime however is an hourly rate that we receive for working extra hours.
Anyway they came back to me (as with everybody else) with a Transfer Letter as opposed to a New Contract. Part of the Letter states the following:
9) Your on-call payments and its regulations remain the same.
And no mention of the overtime.
(I have forgotten to mention that currently I am submitting overtime timesheets to them for collecting my overtime pay, and this is not being specified in my payslip what the payment is for, as it was with my previous employer)
As such I requested them to change it so that it includes the "overtime" also.
They have come back to me to say that they will change it as follows:
I shall update and amend the clause to “Your on-call and additional hours compensation and its regulations remain the same.”
Now, by law as far as I know they are required to pay me overtime as it's written in my original contract to which they either need to uphold, or come to some mutual benefit either by means of salary compensation or other means. I had already pointed out to them by means of an excel sheet an average of what my previous overtime was, and to be honest without this it's a huge cut in pay.
Can you tell me if what they are doing is legal, meaning is this some method that they are adopting to try and bypass the overtime at a later stage ? or is this something that I can/should go ahead and sign ?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. How long have you been working there for?
Customer: replied 1 year ago.

Hi Ben,

Our takeover took place on July 2nd 2015.

My previous employer and Contract that was brought across was since September 27 1999.

At this stage we only received our transfer letters just over 1 week ago, to which most people had some clauses and/or changes to request. There was no response from HR in this regard until last night.

Let me know if you require any further information.

Thanks

Stewart

Expert:  Ben Jones replied 1 year ago.
Thank you I will review this and get back to you shortly
Expert:  Ben Jones replied 1 year ago.
I am not quite certain why they are shying away from including the term ‘overtime’ in the documentation, but what they are doing is not really some legalese way of them avoiding to pay you for overtime. The term ‘additional hours’ could easily be interpreted to include overtime because overtime in itself is additional time you work so it should be included in the above definition.
As you are not signing a new contract, just a transfer letter which confirms your rights will remain the same, any dispute in the future if they choose not to pay overtime should be resolved in your favour.
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.
So any changes to try and remove your overtime pay are likely to be unenforceable anyway. I would say that all of this would become clear pretty soon when you start working overtime. Monitor how they deal with it and if you are paid as you should have been under your old terms. If it all goes fine then it should be no issue, however at the first sign of them not honouring the original terms you should challenge this, firstly by raising a grievance and the considering your further options, such as tribunal involvement.
I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
Customer: replied 1 year ago.
Hi Ben
I believe what you are saying is likely to be correct, but 1 problem that I have is as follows. As already stated on-call and overtime are 2 completely different things.
When they sent us information on our Tupe answers in the past they clearly stated that they do not pay overtime. In my original contract it's clearly stated as individual references that I receive both.
Now, with their letter they have stated that they would like to amend it to not actually read "overtime" but to add "additional hours" compensation.
The problem with that is that can be misconceived as additionL hours for on-call as opposed to "overtime" which is why as you can imagine I am reluctant to sign just yet..
Did that help to clarify matters? As I don't want to be later trying to get my money out of the company..
Regards
Stewart
Expert:  Ben Jones replied 1 year ago.
OK stewart please leave this with me I will get back to you ASAP.
Regards
Ben
Expert:  Ben Jones replied 1 year ago.
Hello Stewart, of course I see your point of view and understand that there could be cause for confusion or challenge, but as mention ned it would very much depend on what the employer actually does and what you get paid for. Also, in the event that a contractual term is ambiguous, it would be interpreted against the party which is trying to rely on it, in this case the employer. So what you could do to protect your position is to refuse to sign anything because by doing so you would still be protected under the general TUPE regulations I mentioned above, which would automatically apply your previous terms. In the meantime you could continue negotiating with the employer. Perhaps you could say that they should amend the wording so that it reads along the lines of ‘additional hours, such as overtime’. Similarly, you could sign it with a short note on the side that it is signed on the understanding that the term additional hours also includes overtime entitlement as per your transferring contract. It is then for them to decide whether they want to accept it with this small addendum.
Hopefully this clarifies your position a bit more. I would be grateful if you could please take a second to leave a rating for the service so far and I can still answer any follow up questions you may have. Thank you
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