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: 48783
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 work as a yoga teacher and one of my employers has had its

Customer Question

I work as a yoga teacher and one of my employers has had its management contract with Westminster City Council terminated. I have been told that as I teach 50% of the two weekly classes I teach for this company in Westminster, I can be transferred ,TUPE intact, to the new management company. However the other class I teach is at another centre which will remain in the control of my current employer, as its in the borough of Kensington and Chelsea. I originally worked at this Kensintin centre up until it was demolished to be rebuilt. Despite losing five classes at that time I was eventually offered one replacement class during the rebuilding period and I was transferred to the Westeminster Centre. This then became what they refer to as my 'main centre'.
When the Kensington centre reopened and I resumed teaching there once a week this apparently remained the case.
I have now been told if I want to keep my class at the Kensington Centre I have to reapply to work for my present employer. To do this I have to sign a new contract and accept their rate of pay and terms and conditions - which are far less favourable than the ones that they currently employ me under (they were part of my TUPE agreement when they took over the management of the centre where I had worked for 10 years from someone else.)
It seems very convenient for them and unfair to me that I will have to teach at a lower rate, lose my right to holiday pay and my employer paying for membership of the Register of Exercise Professionals - an organisation that they insist I belong and the fee for which in the past was always paid for by all of the previous managements companies that have run the centre.
As it is I have not received an increase in salary since 2006!
Do I have any rights to maintain my TUPE agreements with both companies?
Many thanks
E***** *****
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.

Are you an employee or working as self employed?

Customer: replied 1 year ago.
i originally was taken on my them as an employee although - when the original centre closed to be rebuilt they told me I was on a zero hours contract
Customer: replied 1 year ago.
I have been told in the latest correspondence that I have e-mail which company I would like to have as my main tax code as the classes that I teach for the second company would have a different tax code and I would be emergency taxed
Customer: replied 1 year ago.
I'm assuming this suggests that while I am self employed for all my other work - on my tax return this company is down as my employer despite only working for them 2 hours a week!
Customer: replied 1 year ago.
Are you still there?
Customer: replied 1 year ago.
Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  Ben Jones replied 1 year ago.

Yes I am still here. Perhaps it is best if you take a short questionnaire to try and determine your employment status please. See here:

https://www.gov.uk/guidance/employment-status-indicator

Scroll down to: ***** ***** ESI tool and further guidance

Open the link and scroll down to the bottom: I accept the conditions of use - go to the ESI tool.

Open that link too and follow the instructions and let me know the outcome pelase

Customer: replied 1 year ago.
I am definitely an employee - I had conversations years ago with HMRC and for my tax return this company's salary is registered as employee and the remainder that I declare is self- employed. Obviously I only teach two classes per week so I have neither been paid enough to be taxed - nor since my hours were reduced had NI deducted at source. Instead I have paid my NI separately
Customer: replied 1 year ago.
I also receive holiday pay
Expert:  Ben Jones replied 1 year ago.

So the company taking over half of the classes - will they continue to provide these classes as part of their service?

Customer: replied 1 year ago.
I believe they will - although it is only one class per week. The will be reviewing the schedule in July once they have taken over
Expert:  Ben Jones replied 1 year ago.

Thank you. TUPE is one of the most complex laws in the UK so it often causes endless headaches. I will try to keep things simple rather than overwhelm you with legal jargon and hopefully that will still explain your position in some detail. It appears that you are involved in a service provision change, where services are being outsourced. This can trigger TUPE, however certain requirements must be met for that to happen.

There is no requirement for the job to be like for like and exactly the same for it to result in a TUPE transfer. However, the activities that transfer must be essentially the same after the transfer. So if part of the job is moving to a new supplier, they must continue carrying out more or less the same activities that you did before the transfer. This would only cover the services that are transferring rather than the full job you did.

There is an issue if an employee only works partly in the business that transfers, as they would transfer on their existing terms (including all jobs you did) but the transferee would only need them to do part of their previous job. The solution might be to change the employee's terms of employment or make the full-time role redundant and replace it with a part-time role. So you could still transfer to the new business but have to be made redundant from the full role you did and only be offered a contract with the transferring parts of the business. So it is not that straightforward. What the employer has done is potentially legal especially as they can transfer only part of the business. It does mean you either have to accept the transfer or object to it and remain in the business in whatever position they have remaining.

This is your basic legal position. I have more detailed advice for you in terms of the options you have to challenge this, 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

Customer: replied 1 year ago.
The issue of transferring from one employer to another I am familiar with. In my role as a yoga teacher at these centres it has happened many time over the year as one contractor takes over from another to run the leisure services for the local authority. What I am less familiar with and need clarification of it not the new employer taking me on - this I have been told will happen TUPE intact.
What I'm more concerned about is that my current employer who still retains the management of the other centre where ai teach will not let me remain there unless I agree to signing a new contract with them which involves reduced salary, holiday pay entitlement and the aforementioned payment of the register of professional that they have previously had to pay on my behalf.
Having worked for them for 4 or 5 years it seems this is the excuse they need to change the terms that they inherited from my employer before them.
Expert:  Ben Jones replied 1 year ago.

If you no longer continue to work there on the terms you currently work under (i.e. let;s say providing 4 classes and you instead provide 2) then technically your existing job with them no longer exists. So as mentioned they then have the opportunity to provide you with a suitable alternative option (e.g. it could be doing 2 classes a week on the terms they offer) or if no such offer is available and what you are offered you do not find suitable, you can push for redundancy instead. Hope this clarifies?

Customer: replied 1 year ago.
No the existing employer is still offering me the same number of hours, at the same place, the same time - but on a new contract which is less money, no holiday pay.
The new company who take over at the Westminster centre are taking me on with my TUPE protected salary, holiday pay, etc - so my current employer gets to pay less and the new one the same as I'm on now.
If I don't reapply to my current company and accept the lower pay I can't work at the Kensington centre.
Expert:  Ben Jones replied 1 year ago.

if you are an employee then you get paid holidays by law, that is not something they can avoid paying you for. If your existing job with the current employer will continue to exist after the transfer then they cannot change your hours, if they do then that would amount to a change to your contractual terms and you have certain protection against that. If you could please leave your positive rating for the responses so far then I can provide details f the rights you have on change of your contract.Thanks

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
While my class in both centres would potentially still exist when the transfer takes place - it is only the new employer in the Westminster centre who will be contractually obliged to employ me and uphold the TUPE arrangements. The problem that I am facing and seeking advice about is being created my my current employer GLL. They have written to tell me that they will only let me continue to teach my class at the Kensington Centre if I sign a new contract with them - this would mean I would be working for them under new less favourable terms of engagement.
Expert:  Ben Jones replied 1 year ago.

Hi, the key he is whether they were contactually obliged to allow you to undertake these classes. If you did these classes there beforehand but the service had moved under TUPE, then your job there will no longer exist as it did before the transfer. So that is why it is technically a new job that you are left with at the existing employer, not the original one you did because it will no longer exist in the way it did before the transfer. So the options for the employer are to keep you, but on the terms that they want to keep you on, or to make you redundant

Customer: replied 1 year ago.
Ok well thanks for explaining.
Unfair although it appears to be it I have no other choice but to work for a lower rate and for less benefits if I want to keep my class at the Kensington Centre
Expert:  Ben Jones replied 1 year ago.

Sadly that is the case but do not just give up and negotiate if you can as they may not want to lose yo so they could better their offer