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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45391
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I stared work in my company almost 4 years ago. They gave

Customer Question

Hi I stared work in my company almost 4 years ago. They gave me contract after 3 months. I 2015 in April our boss sold us to the another company but they did get me a new contract so I still have contract with the old boss. And in my contract I get information that I should to have off on Christmas day, Boxing Day and New year day. It was like till last Christmas in 2014. But in this Christmas they told us few days before Christmas that we need to came to work on Christmas day and new year day. They close company on 24th and 31st. I was send the email to HR manager and I ask if I can came for 2 difffrent days to work because on 25th and 1st I do not have transport and I'm a catholic and this dayes they are for me very important. So on 31st December I get the letter that I have discyplinarity meeting about 25th. Also in my contract is says If you are required to came to work on those days you will have double pay but when I ask manager and HR manager they told me that they will paid me only for 2hours because I stard shift on 9.30 pm and finished 6 am. And they told me also that Christmas day for night shift is stard on 24th and finished on 25th. Can you answer me what I can do thanks.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.
Hello when is the disciplinary scheduled for?
Customer: replied 1 year ago.
On Tuesday
Customer: replied 1 year ago.
Hi can you answer me ? Thanks
Expert:  Ben Jones replied 1 year ago.
Hello, sorry I was offline by the time you had replied. You may have rights under a law known as TUPE which applies when one business takes over another one. It does not apply to share sales so if the business was sold through the sale of its shares you cannot rely on this. However, if it was not a share sale, you are likely to be able to rely on TUPE.
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. So you can argue that your original terms and conditions still apply.
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.
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. So you can use the above as a defence at the forthcoming disciplinary and hope the employer accepts you have rights in this scenario. If not, you can appeal the outcome and as mentioned you can also consider the tribunal option.
I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. 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 so they can tell me that I need to came to work even if I have in cotract somthing diffrent.
Expert:  Ben Jones replied 1 year ago.
Well not exactly, as mentioned they have a duty to honour the existing contract, unless they can justify that these changes are required for an economical, technical or organisational reason. For example, if the way the business operates is such that they require staff working these days and the majority are expected to attend, then they could try and argue that it is an organisational reason which justifies it. Hope this clarifies?
Customer: replied 1 year ago.
But I was asked them if I can came on any other day and work on diffrent days so I will have off on25th and 1st. And also I have email that I have book holiday on 25th
Customer: replied 1 year ago.
This is a warehouse and people pick the orders on 25th like next day but we send this parcels on 29 december because Royal Mail wasn't work
Expert:  Ben Jones replied 1 year ago.
The employer can give you notice to cancel a pre-booked holiday by giving you notice equal to the holiday, so a day's holiday requires a day's notice. However, I would say that in this case disciplinary action would be harsh and you can appeal it.
Customer: replied 1 year ago.
They don't give me any notice I told them that I don't have transport for thoose two days and I can came for 2 extra days. But he was laughing.
Customer: replied 1 year ago.
They told me that they don't care about my contract
Customer: replied 1 year ago.
And also they write that I can't show anyone the letter which they give me about the discyplinarity meeting
Customer: replied 1 year ago.
And how many days before christmas they should to give me a notice that they cancel my holiday
Expert:  Ben Jones replied 1 year ago.
if it was just a day's holiday then they only need to give you a day's notice so they could have told you about the cancellation the morning before, so 24th
Customer: replied 1 year ago.
In the contract I have christmas day boxing day and new year day and when I was worked for the company which one I have contract we have off on 24th, 25th and 31st and 1st
Customer: replied 1 year ago.
And if you can tell me how many sick days do I have during the year thanks
Expert:  Ben Jones replied 1 year ago.
As mentioned the new employer should honour the old contract which gives you these days off but they can also cancel such holiday by giving you a days notice beforehand. I can help with sick days query but please leave your positive rating for the existing query thanks
Customer: replied 1 year ago.
Hi I got the meeting in last night and they told me that they don't care which contract I have and it was my fault that I didn't came to work on 25th. They can say something like that.
Expert:  Ben Jones replied 1 year ago.
They can try and say whatever they like but you still have legal rights which you can pursue. Please remember to leave your positive rating and i can discuss the next steps with you. Thanks
Customer: replied 1 year ago.
Where I can leave positive opinion
Expert:  Ben Jones replied 1 year ago.
You can select 3,4,5 stars on this page, I think it is located at the top of the page. Thanks
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45391
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Customer: replied 1 year ago.
Good morning I get the letter today that I can't do anything wrong next 12 months because then they will kick me out.
Expert:  Ben Jones replied 1 year ago.
The first thing to do is appeal the disciplinary and remind them that TUPE will protect you to an extent. However, as mentioned even with TUPE in place they can still give you notice not to take pre-arranged holiday which they did here. So it may be that this warning stays - no one can predict if they have a plan to dismiss you within the next year by finding anything wrong you have done and using it against you but if they do at least you have the required service to make a claim for unfair dismissal in the employment tribunal.
Customer: replied 1 year ago.
This is that letter.
Expert:  Ben Jones replied 1 year ago.
ok the advice above remains the same - appeal citing the reasons, you have nothing to lose by appealing, then if the warning stays you just have to consider if you want to continue working there with it and be careful over the next year, or leave
Customer: replied 1 year ago.
I need to respect that even if I this is not in my contract. So what I can't be sick I can't be late
Customer: replied 1 year ago.
So I can't do anything even if that is not from my contract. This is around 300 days I can 't plane all of them
Customer: replied 1 year ago.
There are the email where is information that I have book holiday on 25th
Expert:  Ben Jones replied 1 year ago.
It does not mean you cannot be sick or late but if there are continuous issues then the employer can take further action, so if you are constantly late without reasonable explanation. One event of lateness should not cause further trouble in terms of dismissal.
Customer: replied 1 year ago.
So if the bus will be and then I will be late it is mean that they kick me off
Customer: replied 1 year ago.
I didn't have this information in my contrat
Customer: replied 1 year ago.
So what if I will be sick this is 12 months
Customer: replied 1 year ago.
You can plane hole year evry day
Customer: replied 1 year ago.
And first you saying that tgey can't do anything because I have concract with someone else and now you say that I can't do anything
Customer: replied 1 year ago.
This is ny contract
Customer: replied 1 year ago.
And this is the letter about the tranfer which we get
Customer: replied 1 year ago.
And in last year I was about 12 working days for holiday I ask few months before September they told me that I need to write reason why I need this 12 working days when I want to go to Poland. And then I get the letter and my qeustion is this is right
Expert:  Ben Jones replied 1 year ago.
No I did not say that if your bus is late and you are late as a result you will be dismissed, please check my last repsonse: "It does not mean you cannot be sick or late but if there are continuous issues then the employer can take further action, so if you are constantly late without reasonable explanation. One event of lateness should not cause further trouble in terms of dismissal." Unfortunately I cannot repeat the same answers over and over again so I will clarify one more time: you have a contract which allows you to take 25 Dec as holiday but the employer can give you a day's notice to cancel that. If you do not attend work once they have given you notice to attend then they can potentially discipline you which they have. You are on a warning now - it does not mean you will be dismissed if you are late or off sick in the next year, but you should be more careful about unauthorised absence from work. For now you should appeal the warning based on the reasons I mentioned above

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