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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46805
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have 21 years service in the NHS. My department eas Typed

Resolved Question:

I have 21 years service in the NHS. My department eas Typed over or its services were tendered out. Excess travel expenses were provided for four years. This is coming to an end. I work part time and am on a low salary. I will not be able to afford yo come to work, losing about £36 a week. I will have to leave and am conscious that I will lose my years of service. What options are open to me? Kind regards
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. Are these expenses a contractual right?

Customer:

No

Ben Jones :

But they have been paid consistently for the last 4 years?

Customer:

Yes

Ben Jones :

ok let me get my response ready

Ben Jones :

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.


 


Now you may think that because these benefits were not specifically written in the contract that they would not apply but that is not necessarily true. There is a principle in employment law where terms may become implied into an employment contract by ‘custom and practice’. This makes them contractually binding even if they are not written down anywhere. This area of law is rather complex and it is usually only down to the courts to establish with certainty if something had become an implied term. Nevertheless, it does not prevent employees from directly raising this argument with their employers.


 


The basic requirement for implying terms is the presumed intention of the parties, in other words - did the employer and employee intend for the terms in question to be treated as contractual. In general, a practice would need to have been clearly communicated and consistently applied for a substantial period of time before it can be considered an implied contractual term. Therefore, something that is uncertain, not communicated properly, not been applied consistently or has just been around for a few months is unlikely to qualify.


 


Case law has suggested that the following are important factors when considering whether a term has become implied in a contract:



  • On how many occasions, and over how long a period, the terms in question have been applied - the more times they have been applied and the longer the period over which this has occurred, the stronger the argument they had become implied into the contract

  • Whether the terms are always the same - large differences will make the argument they had become implied weaker

  • The extent to which the terms are publicised generally - there must be widespread knowledge and understanding amongst the workforce that such terms were being applied


 


You may tell the employer that you believe the term or practice you are relying on has been implied into the contract through 'custom and practice' and see what they say. They could of course deny that and refuse to discuss the matter and if that is the case then you can only realistically challenge this by taking your case to an employment tribunal.

Customer:

So I could say this was implied into the contract although i have been tol up to Six months ago it would end the expenses I mean and originally knew it was for four years should I just leave

Ben Jones :

if you were specifically told it would end on a set date then it may weaken your argument to say they had become implied but whether you leave or not is not something I can tell you as only you can make that decision

Customer:

Is there any redress I have a permant contract length of service and pension

Ben Jones :

only if you make a constructive dismissal claim if you were forced to leave

Customer:

Thank you I wasn't sureif you still were chatting. Anymore advice on c d would be appreciated

Ben Jones :

I am still here, what else would you like me to clarify?

Customer:

I will have to leave anyway the fact I cannot afford the travel would that not suffice as CD or would I have toiy on a claim via the union

Ben Jones :

well for CD you need to show that the employer had committed a breach of contract so serious that you were left with no otherr option but to leave. There is a potential claim here but the tribunal will consider if the fact this was only for a limited time and you knew this, would make it difficult for you to claim. In any event the union can help with a claim if necessary

Customer:

If you think of anything else please email

Customer:

You have been v helpful I will take on board what you say

Ben Jones :

Yes I will do and you are most welcome

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46805
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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