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Many thanks for your patience. TUPE applies when a business undertaking, or part of one, is transferred to a new employer or if there is a service provision change, such as a new service provider taking over an existing contract.
As you are likely aware, 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, although it is possible and it does happen.
If the changes are part of a wider reorganisation which has nothing to do with the transfer, then they may be effective.
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.
In terms of the possibility of you having to accept the new T&Cs to be entitled to the pay scale, I am afraid that is entirely possible and legal. TUPE is a bit of a double-edged sword. Assuming you keep your existing terms and conditions then in some circumstances it will work to your advantage if your terms are better than the ones of the existing workforce of the new employer. On the other hand they may be inferior and you could end up on worse terms than what everyone else has. The key is that the employer has to keep your existing terms, bar any ETO changes and sometimes that will work out better for you, other times it may not. In this case, the new employer has to keep your old terms and they will be protected under TUPE. If they offer new pay scales to their workforce then they do not have to make these changes to your terms as they are protected and only if you move over to their terms will you become eligible to these changes too.
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Yes correct that could indeed be the reason why. So basically they can keep yu on the same terms you had before the transfer, bar any ETo-approved changes, and any further changes can only be implemented to those who are employed on the new employer's terms, because they can always use the excuse that they are preserving your terms as a result of your TUPE protection.
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