How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Ben Jones Your Own Question
Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47371
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
29905560
Type Your Employment Law Question Here...
Ben Jones is online now

I have a question about belated harmonisations my employer

Resolved Question:

I have a question about belated harmonisations my employer is making to our holiday which includes:
1. Shortening the holiday 'year' to harmonise it with other depts thus reducing days allowed over 2016.
2. The days over over xmas time are described now as discretionary rather than contractual.
:::::: HISTORY ::::::::
PART 1
In 2001 I join 1st company and the holiday clauses are:
"The holiday year runs from the 1st July to 30th june"
"The holiday is 20 days plus bank holidays plus 3 days at xmas. The company closed down over xmas and these cannot be used at any other time. After two years service an extra day is added until a maximum of 25"
PART 2
1st company taken over by 2nd in 2002 but has a different holiday year so to align the holiday years the year is extended to harmonise them fairly, as explained at the time:
"For the period 1st July 2002 to 31st January 2004 you will be entitiled to 34.5 days holiday plus blank holidays. From 1st Feb 2004 you will be entitled to 23 days holiday increasing by 1 day on each subsequenct 1st Feb upto 25days. The company will declare an additional 3 paid working days holiday to be taken on days nominated by the companay over xmas.
PART 3
2nd company taken over by 3rd in 2008 but no contractual changes made at all.
PART 4
3rd company decided now to modify holiday year to Jan 1st-Dec31st to align with other departments, but in doing so reduced the holiday 'year' to 11 months, by their pro rata calculation of (25/12)x11 = 23.
:::: PROBLEMS ::::::
My 25 days a 'year' has now been reduced to 23.
Other affected departments were briefed/consulted in Dec 2015 but not ours.
An out-of-the-blue email clarifies the new holiday as a result of above consultation results in an email CC'ed to all (including us) confirming the changes.
No pay rise etc has been offered in compensation for 'lost' holidays.
It is an open secret that the discretionary xmas days will probably be removed as the next stage.
::::::: QUESTIONS :::::::
1. Has 3rd company any legal right to harmonise the holiday that results the the detriment to employees (even after 8years elapsed)?
2. Does the use of an extended holiday when 2nd tookover 1st demonstrate a legal compliance or just good will?
3. Has the 3rd company any grounds to refer to xmas days as "discretionary" now, when my 1st company contract says they are contractual and the 2nd company says they "will declare.."?
4. Is the lack of consultation with our dept a legal error or bad practice on HRs part?
5. Would a pro-rata calculation give them a loophole on yearly allowance?
6. Should the employer formally offer a new contract to sign after redundancy or could this be a contructive dismissal if I leave?
Thanks for reading such an epic story! Andrew.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Remus2004 replied 1 year ago.
---
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today. Were all takeovers done under TUPE?
Customer: replied 1 year ago.
2nd co takeover 1st is a TUPE I'm sure, 2nd by 3rd is more low key and seamless and no new contracts were ever made so all carried on as usual until 8 years later.
Customer: replied 1 year ago.
I think 1st co was a Ltd where the founder sold out to the 2nd. The 2nds was a larger Ltd that whose shares were bought out I think
Expert:  Ben Jones replied 1 year ago.
Ok thank you leave it with me please. I will respond fully in the morning as I am not online for much longer this eve. Thanks
Customer: replied 1 year ago.
please find two attached images whose filename is ***** ***** or second of the companies contracts
Expert:  Ben Jones replied 1 year ago.
Hello, the likelihood is that these takeovers were all under TUPE so will continue based on that assumption. 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. 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 to answer your queries: 1. Has 3rd company any legal right to harmonise the holiday that results the the detriment to employees (even after 8years elapsed)? Answered above 2. Does the use of an extended holiday when 2nd tookover 1st demonstrate a legal compliance or just good will? It would be viewed as goodwill as they would have only extended it for a one off or short period to align you to their system and reduce any negative impact as much as possible, but it does not set a precedent. 3. Has the 3rd company any grounds to refer to xmas days as "discretionary" now, when my 1st company contract says they are contractual and the 2nd company says they "will declare.."? These should still be contractual rather than discretionary 4. Is the lack of consultation with our dept a legal error or bad practice on HRs part? Generally bad practice, there is nothing in law which says that if they try to change your contract the MUST consult with you 5. Would a pro-rata calculation give them a loophole on yearly allowance? It is not a legal loophole as such, it may be a way to try and minimise the adverse effects and a potential compromise but it is not a get-out legal loophole 6. Should the employer formally offer a new contract to sign after redundancy or could this be a contructive dismissal if I leave? They should but again it is not a definitive must. Best practice if they do. If you were to leave as a result of the changes then it is potential constructive dismissal but you will have to show that the changes were serious enough to justify you resigning and leaving you with no other 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.
Thanks for the rely which has plenty of jargon to confuse our HR folks, but just to recap:1. The xmas days appear to be safe from change.2. Im still unsure about the holiday year changing....
2i . I understand that TUPE doesnt expire and there was never any variation clause, so things cant be changed. My employer will claim ETO reasons as they have admitted in an email already it is purely to align us with other departments - presumably to simplify admin and accounting I suspect. Is this allowed (ie have they breached the TUPE protected contract afterall)?2ii. Ignoring xmas + bank holidays, I will over the summer of 2016 have 23 rather than 25 days and thus endured a reduction in my conditions of 2 days in reality as I wont take the pro-rata but without any linked change in job position, role or pay or genuine re-organisation.Naturally, i would say that's a serious reduction, then they will says its not and quote the pro rata explanation (which is not mentioned in the contract). Is it likely given your experience a tribunal would agree with me? Would it help the tribunal that the employer chose to bury the changes in emailed document + as a company that grows purely by aquisition ought to know about TUPE protection?Thanks.
Expert:  Ben Jones replied 1 year ago.
Hello, unfortunately with TUPE it is impossible not to get a bit technical - it is a nuisance for us lawyers, let alone non-legal folk. TUPE does not expire, but the changes will only be automatically unfair if they are linked to the transfer and cannot be justified for an ETO change. If this is due to harmonisation then you can certainly argue it is linked to the transfer so the quesiton is whether it amounts to an ETO reason. I would say it would not be the case because for an ETO reason to qualify there must be a change in the workforce and this must involve change in the numbers, or possibly functions, of the employees. I cannot see that being the case here. As to losing 2 days you simply have to look at it based on your original terms and what you should have received had you stayed on those terms. If it is 25 days then that is what you should still get and reducing it should not be allowed whether they change the holiday year or not. It could be affected fir a year perhaps whilst changing the holiday year dates happens but overall it should not impact you and you can still maintain you should get the 25 days. If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47371
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Employment Law Specialists are ready to help you

Related Employment Law Questions