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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48785
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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In 2012 I was tuped to my present employer. Under my old employer

Resolved Question:

In 2012 I was tupe'd to my present employer. Under my old employer I worked Mon to Fri with 25 days hol plus Bank Hols.
My present employer now wants to change so I am working 4 days on and 4 days off with a loss of over £3,000 pa. I will also lose the Bank Holidays and be required to work weekends.
I will also lose additional benefits I had with my old employer.
It appears that this is a totally new contract and I would ask if they can do this.
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. What reasons have they given for these changes?
Ben Jones : pleqse note I am travelling so won't be able to respond immediately buy will do so early this evening thanks
Customer:

They have as yet not given any reason but I believe it is to bring us in line to the existing employees but when we were Tupe'd over we were assured that nothing would change.

Ben Jones :

Many thanks for your patience. If TUPE applies to a transfer, those employees assigned to the transferring business will move to the new employer on their existing terms 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.


 


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 of itself break the connection.


 


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.


 

Customer:

Thank you very much. Could we take action for constructive dismissal if they cannot justify the eto reason but still proceed.

Ben Jones :

yes that would usually be the next step, unless you are dismissed for refusing to accept the changes, in which case you are looking at unfair dismissal instead

Customer:

Is there anything else that you could consider that may help us.

Ben Jones :

it really depends on what the employer uses as a reason for te changes an if it can be justified but such drastic changes could be difficult to justify so be prepared for a possible fight

Customer:

Does the drastic loss of salary make any bearing on the issue.

Ben Jones :

that would work in your favour - it would make justifying such changes much more difficult for the employer

Customer:

Many thanks for your help which has cheered me up. If I need to ask your advice in this matter again may I come back to you.

Ben Jones :

You are most welcome. Please take a second to leave a positive rating for the advice I have provided as that is an important part of our process. Thank you and feel free to bookmark my profile for future help:



www.justanswer.com/law/expert-ben-jones/

Customer:

I will certainly do that and many thanks again.

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