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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 47404
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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A friend of mine has been employed by a company

Customer Question

Hi, a friend of mine has been employed by a company for 12 years. 6 months ago he was diagnosed with a medical condition that affects the nervous system. His company helped with his illness and gave him a special keyboard and software to complete his job. The company was sold and taken over by a different company a few months ago. They mainly work from a different site 10 miles away. They started to pay him less without warning because that is what the employees at their main site were on, they also took away his health insurance which his previous company had. Initially my friend continued working at the old site but after the new company said there was a downturn in business he needed to be moved to the new site, even though a few people doing his job were kept at his original site. He felt he had no option but to go anyway. The new site ran a different computer system to the old one, so his specialist keyboard and software wasn't able to move with him. As a result of that his condition got worse and a doctor signed him off. The old company paid sick pay for 30 days, but the new company have only paid 14 days. They've also told him that unless he can provide a date which he can return to work, they will have to fire him. What should my friend do to start resolving the matter and does he have any potential claims against the new employer?
Submitted: 1 year ago.
Category: Employment Law
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.
Expert:  Ben Jones replied 1 year ago.
How would he like to resolve this what is the outcome he is after?
Customer: replied 1 year ago.
He's unsure. Ideally at first it may be good to go to his company and let them know he knows the situation and use it as leverage... or if he has a strong possibility of a win in court, he may go that route - depending on the cost and what his potential outcome could be...
Expert:  Ben Jones replied 1 year ago.
Thank you. There are various issues at play here – initially the new employer may have breached a law known as TUPE, then there is potential disability discrimination too. I will explain in more detail below. Firstly, if his old business was taken over by the current employer, the likelihood is that a piece of legislation known as TUPE would apply. This means that 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 if they are changing his benefits then that is going to amount to a breach of TUPE and such changes would automatically become unenforceable. He can therefore challenge them on these grounds for those issues. Secondly, if his condition amounts to a disability he will have extra protection under discrimination laws. The first thing is to try and determine if he is disabled. In the legal sense of the word, disability can have a broad meaning and there is no single list of medical conditions that qualify. Instead, to establish whether a person is disabled, they need to show that they meet the legal definition of a ‘disability’. The Equality Act 2010 defines a disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”. I will break this definition down:Physical or mental impairment – this can include nearly any medical condition;Substantial effect – the effect must be more than minor or trivial;Long-term - the effect of the impairment must either have lasted or be likely to last for at least 12 months;Normal day-to-day activities – these could include anything considered ‘normal’ in a person's normal daily routine (e.g. walking, driving, speaking, eating, washing, etc.) If a person satisfies the above criteria, they will be classified as being disabled and will have automatic protection against discrimination, which means that they must not be treated unfavourably because of their disability. In addition, their employer would have a duty to make reasonable adjustments if they are likely to be placed at a substantial disadvantage when compared to non-disabled employees. What amounts to ‘reasonable adjustments’ can have a wide interpretation and often depends on the individual circumstances. Below are some examples:making adjustments to work premises;allocating some of the employee’s duties to others;transferring the employee to fill an existing suitable vacancy;altering the employee’s hours of work;allowing the employee to be absent during working hours for rehabilitation, assessment or treatment connected to their disability;acquiring or modifying specialist equipment;providing supervision or other support. If someone who is disabled is being treated unfavourably because of their disability or their employer has failed to make reasonable adjustments it would potentially amount to disability discrimination and he can use this against them in respect of those issues. This is your basic legal position. I have more detailed advice for you in terms of the options he now has to take things further, 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, there I no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
Expert:  Ben Jones replied 1 year ago.
Myresponse should be visible on this page. Could you please let me know if it has answered your original question or whether you need me to clarify anything else in relation to this? If your query has been answered 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. Thank you
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Customer: replied 1 year ago.
Thank you Ben, this is excellent. If you can continue that would be great. I'd also like to know in a little more detail how the reduction in pay is allowed or not.... Are they allowed to do this and without warning? If you can add in any case law to strengthen the position that would be brilliant.
Expert:  Ben Jones replied 1 year ago.
Thank you. Initially he should pursue this through a formal grievance at work – this is what the grievance procedure is there for. If the grievance does not resolve thongs then his next steps will very much depend on wat the employer does. If they fire him then he can make a claim for unfair dismissal and disability discrimination in the employment tribunal. If they do not fire him but make his life very difficult for him he has a couple of options – remain In his job and claim for disability discrimination, or resign and claim constructive dismissal and again disability discrimination. Whichever route he decides to follow, before a claim is made he has to go through a specific process. A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal. If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement. The conciliation procedure and the form to fill in can be found here: https://ec.acas.org.uk/Submission/SingleClaimantPage In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.
Customer: replied 1 year ago.
Thank you.. I don't feel my question regarding his pay has been answered...'I'd also like to know in a little more detail how the reduction in pay is allowed or not.... Are they allowed to do this and without warning? If you can add in any case law to strengthen the position that would be brilliant.'After being TUPE to the new company, is a company allowed to do a 'service review' even after a week at the new company and tell the employees that it's not cost effective to keep them so they have to reduce pay? My friend hasn't been consulted about his reduction in pay, but I've heard they can 'service review' and do this?!
Expert:  Ben Jones replied 1 year ago.
Hello, they cannot just reduce his pay, it would be a breach of contract and/or unlawful deduction of wages, which is made illegal under the Employment Rights Act 1996. Under law, an employer can only make deductions from, or withhold/reduce an employee’s wages in the following circumstances:· If it is legally allowed (e.g. to deduct tax);· If it is to recover an earlier overpayment of wages made by the employer;· If their contract specifically allows for the deductions to be made; or· If the employee has given their explicit written agreement for the deductions to be made. If none of the above exemptions apply, the deductions will most likely be unlawful. As to the service review, in a TUPE transfer 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.
Customer: replied 1 year ago.
He's been told that the reason his wages have been reduced is for economic reasons. However, the new original employer was a government agency and they lost the tender to a new private firm. The private firm claim it's not economically possible to keep the old staff at their original salaries, and they would have to reduce their wages or make people would 'lose their jobs'. Is this still allowed? My thinking is that they bid for the tender knowing they would have to accept the original staff on their wages, they've been given the amount they tendered from the government to continue the new service, they don't have private clients who aren't paying for the service. I don't see how it's fair or possible?
Expert:  Ben Jones replied 1 year ago.
The ins and outs of the reasons are something only a tribunal can look into to determine if they are fair or not. There are so many possible reasons for an employer trying to justify such changes that it is impossible to try and say if they will be accepted or not. So if they have used this reason and tried to justify it, they can still be challenged over this in tribunal and only it has the right and power to determine if it was fair or not
Customer: replied 1 year ago.
Hi, I've just been reading back through this and the issues relating to my friends company telling him he must return to work have not been answered.. He's signed off work by the doctor, they have asked for his return to work date and if he cannot provide this they will dismiss him. is this lawful?
Expert:  Ben Jones replied 1 year ago.
Hello, a simple failure to provide a return date should not result in dismissal, especially if the employee is officially signed off. However, the employer could issue a warning that this absence is becoming too prolonged and ask that they consider a return some time soon, with adjustments if necessary. Only if it appears that there is no likely return date or the employee is unlikely to be able to do their job, or anythign else available, could they eventually consider dismissal