Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.
What can I provide you with ?
Is the employee reluctant to change his current terms and conditions?
He is currently unaware, the question was raised by a director who is looking at various costs within our company at this present time.
OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.
Perfect - Thank You
No problem at all.
Many thanks for your patience. The issue here is that under Regulation 4(4) of TUPE any changes as a result of the transfer 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.
So you are risking these changes being automatically void because they would be connected to the transfer and will not be for an ETO reason. You can still propose the changes you wish to make and try to get his consent, however if he refuses it may be best to accept them as they are, otherwise it could give rise to a constructive dismissal claim, where he is forced to resign due to this.
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