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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45303
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Jones. I was TUPE'd over to my present security company

Resolved Question:

For Ben Jones.
I was TUPE'd over to my present security company in March 2012 and the letter I recieved stated 'I confirm there will be no changes to your terms and conditions of employment' The only change was as to who pays my wages and the change of uniform.
The company now want to change the contract which effectively means that I will not be able to carry on working for them mainly due to the loss of salary but for other reasons as well.
Under my old contract I worked Mon to Fri from 7am to 6pm and earned £27,272.10. 2 hours a day was overtime at time and a half.
Under the proposed new contract I would work from 7am to 7pm. All hours at basic rate of £8.75 per hour. My estimated salary would be £19,110.00. This means a loss of approx £8,000.00 per year.
My holiday entitlement would drop from 25 days plus statutory holidays to 20 days inclusive of statutory holidays which would be paid at basic rate. This is a loss of 13 days holiday.
My old contract provides for 26 weeks full sick pay but the proposed new contract is for no sick pay, only SSP.
The old contract allowed for a daily meal allowance of £3.20 but this would be removed.
The old contract provided for all courses to be paid by employer but the proposed new contract means I will have to pay for courses.
I was also entitled to mileage allowance if going to courses but this would no longer be the case.
I would like to know if they can force me to accept these changes and if not would I be in a position to pursue a claim for Constructive Dismissal.
Many thanks and I look forward to receiving your advice.
Peter East.
Submitted: 11 months ago.
Category: Employment Law
Expert:  Remus2004 replied 11 months ago.
I think Ben is off right now but I will send him a message about this.
Customer: replied 11 months ago.
Many thanks.
Expert:  Ben Jones replied 11 months ago.
Hello, thanks for your patience, I was in tribunal today. Do you think these changes are linked to the transfer, by that I mean are they for example trying to harmonise your terms with those of existing employees who did not transfer?
Customer: replied 11 months ago.
Yes, I believe they are. But, for example my colleague that was transferred with me has kept the Mon to Fri rota although I believe the other proposed changes are the same.I was told by my line manager that it all comes down to the client company not wanting to pay the extra money under the original transfer agreement, saving them money. My employers are saying that if they are not getting paid then they cannot pay me.I hope this clarifies the position but if you have any further questions please let me know.
Customer: replied 11 months ago.
Have got to go shopping now Ben but should be back by 3pm.
Expert:  Ben Jones replied 11 months ago.
Hi sorry we keep missing each other. 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. I do not think that this is a case of harmonisation as this is likely to have occurred soon after the transfer, not a few years later. 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. This is your basic legal position. I have more detailed advice for you in terms of the options you have in terms of tribunal claims, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 45303
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Expert:  Ben Jones replied 11 months ago.
Many thanks. So if the employer pushes through the changes and they cannot be justified as being for an ETO reason as mentioned earlier, this could potentially amount to constructive dismissal, which occurs when the following two elements are present:· Serious breach of contract by the employer; and· An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long. A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence, such as making such changes in breach of contract. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario). The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away. If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal. Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal. An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you. Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort.

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