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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47376
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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Can my new company under tupe use my past sickness with my

Resolved Question:

Can my new company under tupe use my past sickness with my previous company to discipline me as part of a sickness stage process
Submitted: 1 year ago.
Category: Employment Law
Expert:  Remus2004 replied 1 year ago.
Can you explain your situation a little more?
Customer: replied 1 year ago.
I was tupeed over in Jan 2016. I had two weeks absence in May 2015 under my previous employer with a worsening of my long term mental health condition as I had tried to come off sedating medication . Also associated with my work laptop crashing and not being able to be retrieved as they had not put me on the password ***** list. Huge stress. In January my twin brother had a catastrophic stroke in South Africa and I went there for two weeks. I was the for him but also my anxiety was through the roof and I needed to go back onto high dose meds and sleeping tabs. I was originally signed off for four weeks but came back after two on rehab at my request. In week one of my return I was advised that my Bradford score was high using the absence in May 2015 and I have been put onto a stage 1 sickness process. I have challenged and challenged this under EA discrimination and contacted ACAS but in my insomnia last night wondered whether in fact the fact that this last 2015 absence was for another employer can be used. My new company has also just produced a new sickness policy which I think they can't do if it if prejudicial compared with the previous one, and it doesn't mention disability, adjust bets etc.
Customer: replied 1 year ago.
Adjustments. Not adjust bets!
Background is I had a huge fight with the chief medical officer late last year over her consent policy and attitude to making decisions for patients who can't give consent. I had to threaten her with GMC reporting after ascertaining from both the GMC AND my medical defence that I was right. She had to reluctantly change the policy which she effectively did using all my advice, and feel that this may now be a factor.
Expert:  Ben Jones replied 1 year ago.
Hello, my name is ***** ***** my colleague has asked me to assist with your query as it is more my area of law. It is certainly possible to take into account previous absences following a TUPE transfer. When you transfer, you do not get a clean slate so to speak. All issues prior to the transfer continue to exist. What happens is that the new employer basically steps into the shoes of the old employer ad takes on their employees with all liabilities, etc, including past absences. So you should not view the new employer as a completely new employment which has nothing to do with the past – it does and anything that has happened before the transfer can be taken into account. They may have tried to change their policies on absences, but if the old policy was not a contractual one it will not be protected under TUPE anyway. It does not matter if they do not mention disability, adjustments, etc – these are rights you get under law, whether they are mentioned in a policy or not. 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
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47376
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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