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What are you ideally hoping for, given the circumstances?
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Hi there it actually appears you never rated the previous question I helped with so I was unfortunately never paid for it. If you can access it still are you able to do so please, then I can continue with the latest issue, many thanks
no problem at all and many thanks for sorting that out. So going back to your query, if TUPE applies to a transfer, those employees assigned to the transferring business will automatically move to the new employer on their existing contractual terms and conditions. Simply put, the new employer would 'step into the shoes' of the old employer and the employees should start working for the new employer as if nothing had changed, apart from the name of their employer. They would also preserve their continuity of service and the time with the old employer will form part of their continuous service.
This is the ideal outcome, although post-transfer difficulties can often arise. For example, the new employer may wish to try and change some of the incoming employees’ terms and conditions as they may not necessarily agree with the terms they were entitled to under their old contracts. However, under Regulation 4(4) of TUPE any changes are automatically void if the sole or principal reason for them is the transfer.
The only circumstances under which an employer may wish to try and introduce changes are:
· If they were unconnected to the transfer; or
· If they were necessary for an economic, technical or organisational (ETO) reason, subject to employee agreement or the terms of the contract permitting the change.
Some employers may try and justify making changes by arguing that they are needed in order to harmonise the transferring employee’s old terms with the new employer’s standard terms. 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.
If the changes are part of a wider reorganisation which has nothing to do with the transfer, then they may be effective. The longer the gap between the TUPE transfer and any reorganisation, the greater the chance that the causal connection will be broken. However, there is no specific period after which it is safe to say that the connection with the TUPE transfer has been broken, as the test is whether the change is connected to the transfer. The mere passing of time does not in itself break the connection.
If there are concerns about the fairness and validity of any changes introduced by the employer following a transfer, a formal grievance can be raised with the employer. Following that, the main option to pursue this would be by resigning and making a claim for constructive dismissal in the employment tribunal.
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I would say that until you know with certainty your role won't be kept, you cannot do much. This may not actually become apparent until you are formally told about it by the new employer or actually start the role. Once that becomes clear I suggest the redundancy route fist as you would resolve the matter to your satisfaction then, whereas having to resign and claim constructive dismissal can be more difficult, but it is there as a last resort if needed. Hop this clarifies?
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