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: 46190
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
29905560
Type Your Employment Law Question Here...
Ben Jones is online now

Having worked years we have been transferred to a contractor

Customer Question

Having worked for nhs for 20 years we have been transferred to a contractor under tupe . I am now being made redundant and am only being offered statutory redundancy . I thought that all terms and conditions would remain in tact and I should receive the nhs redundancy payment . Am I correct in thinking this ? I can't seem to get a yes or no answer for this can you please help
Submitted: 8 months ago.
Category: Employment Law
Expert:  Ben Jones replied 8 months ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. Were the NHS redundancy terms included in your previous contract with the NHS?

Customer: replied 8 months ago.
I was on agenda for change with all the usual terms and conditions I think
Expert:  Ben Jones replied 8 months ago.

When did you transfer?

Customer: replied 8 months ago.
21st Jan 2016
Expert:  Ben Jones replied 8 months ago.

Ok thanks. The Agenda for Change term are a collective agreement, they are not automatically part of the contract you had with the NHS. However they can be incorporated in your contract. Therefore, it is possible that they will be protected under TUPE, which only protects contractual terms.

In fact a case in the European courts commented:

“Following the transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.”

So assuming the collective agreement terms have not been changed by the new employer in any way since the transfer, you should be able to rely on them still.

There is one exclusion which states the terms of a collective agreement will not come into force after a transfer if:

{C}· They are agreed and come into force after the date of the transfer; and

{C}· The new employer is not a participant to the collective bargaining

So this only applies if the terms you are relying on had been introduced after the transfer.

Whatever your rights you cannot force the current employer to agree the old terms apply still – if they refuse to, then you may have to consider challenging this in tribunal, which is the only organisation that can issue a legally binding decision on the issue.

This is your basic legal position. I have more detailed advice for you in terms of the steps you can follow if you decide to take this 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 is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 46190
Experience: Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and 2 other Employment Law Specialists are ready to help you
Customer: replied 8 months ago.
Thank you, ***** *****'t entirely understand all of what was written, but if after the transfer there were changes made to the collective agreement, would I have had to have been consulted of any changes, and would I have had to sign anything so I was made aware of any big changes like losing my entitlement to nhs redundancy pay or would this be done without my knowledge?
Expert:  Ben Jones replied 8 months ago.

Thank you. If any changes were made to the CA after the transfer then the new employer must have been part of these changes, they must have participated in the bargaining process. There is no requirement for the NHS to have consulted with you or informed you of any changes post transfer - you are no longer their responsibility after that.

If you are made redundant without being paid the redundancy pay you believe you are entitled to, then you have 3 months to consider making a claim in tribunal.

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.

What Customers are Saying:

 
 
 
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
< Previous | Next >
  • Thank you so much for your help. Your answers were really useful and came back so quickly. Great! Maggie
  • A quick response, a succinct and helpful answer in simple English. I believe I can now confront the counter party with confidence -- worth the 30 bucks! Rick
  • Wonderful service, prompt, efficient, and accurate. Couldn't have asked for more. I cannot thank you enough for your help. Mary C.
  • This expert is wonderful. They truly know what they are talking about, and they actually care about you. They really helped put my nerves at ease. Thank you so much!!!! Alex
  • Thank you for all your help. It is nice to know that this service is here for people like myself, who need answers fast and are not sure who to consult. GP
  • I couldn't be more satisfied! This is the site I will always come to when I need a second opinion. Justin
  • Just let me say that this encounter has been entirely professional and most helpful. I liked that I could ask additional questions and get answered in a very short turn around. Esther
 
 
 

Meet The Experts:

 
 
 
  • Ben Jones

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    10609
    Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
< Previous | Next >
  • http://ww2.justanswer.com/uploads/BE/benjones/2015-12-1_0437_ennew.64x64.jpg Ben Jones's Avatar

    Ben Jones

    UK Lawyer

    Satisfied Customers:

    10609
    Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
  • http://ww2.justanswer.com/uploads/KA/Kasare/kasare.64x64.jpg Kasare's Avatar

    Kasare

    Solicitor

    Satisfied Customers:

    41
    Solicitor, 10 yrs plus experience in civil litigation, employment and family law
  • http://ww2.justanswer.com/uploads/OS/osh/2015-7-7_19268_gettyimagesb.64x64.jpg Joshua's Avatar

    Joshua

    Laywer

    Satisfied Customers:

    49
    LL.B (Hons), Higher Prof. Dip. Law & Practice
  • http://ww2.justanswer.com/uploads/taratill/2010-03-09_111600_phpsik04M_c2AM.jpg taratill's Avatar

    taratill

    Solicitor

    Satisfied Customers:

    671
    15 years experience of advising on employment law matters
  • http://ww2.justanswer.com/uploads/LI/li/2014-12-19_134845_lexughes.64x64.jpg Alice H's Avatar

    Alice H

    Solicitor Advocate

    Satisfied Customers:

    99
    Partner in national law firm with 20+ years legal experience
  • /img/opt/shirt.png tdlawyer's Avatar

    tdlawyer

    Laywer

    Satisfied Customers:

    53
    Lawyer with 9 years experience in employment related issues.
 
 
 

Related Employment Law Questions