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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46207
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I was 'TUPE' transferred from Lincolnshire police to

Resolved Question:

I was 'TUPE' transferred from Lincolnshire police to Derbyshire police on the 1st May (not handled well and only given 3 weeks notice most of which I was out of the Country for!).
Information is very lacking from HR departments and no support from previous employed despite still working in the same office (in Lincoln). I am a support staff worker who had worked for Lincs for 34 years.
I have currently taken my terms and conditions with me but as part of the infamous 'ETO' reasons we are now being given new job titles, changes to our role and what is expected of us. We have been told that there will be a new pay scale but unless I transfer to Derbyshire's terms and conditions, I will not receive the new salary and will remain on my Lincs pay grade. Is this correct as it seems unfair and I feel forced to accept Derby's T&C's or not get paid the same as everyone else doing the same job? They also want to change the yearly incremental pay rise to be a performance related rise (something which is not in my or their T&C's).
I would appreciate some advice on the above as no one seems to want to help here or even reply to me!
Kind regards
Sandra
Submitted: 10 months ago.
Category: Employment Law
Expert:  Ben Jones replied 10 months 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 10 months ago.

What specific queries do you have about all of this please?

Customer: replied 10 months 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.
Customer: replied 10 months ago.
Tel: 01522 855480 or 07766 404616
Thank you
Expert:  Ben Jones replied 10 months ago.

I am not available for a call at present so we can either talk later today or continue on here - whatever suits you?

Customer: replied 10 months ago.
Ok, well the queries are as above - can they withhold/deny a pay scale change because I want to keep my current T&C's?
I know TUPE stares you take your T&C's but it doesn't actually mention pay specifically.
Also can they introduce a performance related pay increment scheme when none currently exists, with the exception of 'poor performance'.
Expert:  Ben Jones replied 10 months ago.

Thank you for your response. I will review the relevant information and laws and will get back to you as soon as I can. Please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you

Expert:  Ben Jones replied 10 months ago.

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.

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 10 months ago.
That'll be why they never mentioned pay then! I presume the same applies to the 'performance' related pay increments mentioned in the new job description, despite no mention of any such scheme in the T&C's, and it will only apply to my particular Department and is not a Force-wide thing?
Expert:  Ben Jones replied 10 months ago.

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.

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

Expert:  Ben Jones replied 9 months ago.

Hello, I see you have read my response to your query. If this has answered your question please take a second to leave a positive rating by selecting 3, 4 or 5 stars from the top of the page. I spend a lot of time and effort answering individual queries and I am not credited for my time until you leave your rating. If you still need further help please get back to me on here and I will assist as best as I can. Many thanks.

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46207
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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