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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I have worked for my present company for 31 years. It has

Resolved Question:

I have worked for my present company for 31 years. It has been taken over this week and I'm wondering how and what my rights are with regards XXXXX XXXXX company car that I have had for the entire of my working years.

We are being taken over under TUPE, which I was led to believe that means all benefits are carried forward, but my car seems to be becoming an issue.

I have never paid for my car in any respects, except through my tax code, they have tried to offer me a car allowance with me running my own car, but for me the amount of £300.00/month, to run, pay its insurance, car tax and any repairs is not enough. Then there is the case of who buys me a car in 3-5 years time when the car is generally renewed, as I will not have been able to save enough towards this.

Are they allowed to change this benefit I have had for so long, to a way which I think, suits their pocket rather than mine
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.

Ben Jones :

Are these benefits contained in your contract?

Customer:

As far as I'm aware yes, but to what degree this covers I would need to look at it

Ben Jones :

what have they said about the car?

Customer:

At first they said before the take over took place, that nothing would change and all benefits would be carried forward. After the event, they have offered me an allowance of £300.00/month, which I said did not cover me having and running a car personally, with the fact that I would usually have a new car every 3-5 years. They asked me for an amount I would be happy with and I said £100.00/wee after tax, as looking at it long term.

Customer:

They weren't happy with this and said they would carry over the car I have now and make it a company car, but I would like to know if they can change things and I have to accept this or can I stand my ground for what I have had all along. If it is not covered in my contract, with these specific details, ie they cover every cost, I suppose they can?

Ben Jones :

ok let me get my response ready please

Customer:

thank you

Customer:

Hi Ben, just wondering if you are still working on this

Ben Jones :

yes I am here

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.


 


A further issue is if these benefits were not specifically contained in the contract but were applied for a long time. 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:

OK Ben, it basically means that they cannot change things as I have had this for a long time and putting across that if I have a company car may upset other members of staff won't cut it

Ben Jones :

correct, but they also have to consider if they can justify the changes for an ETO reason although as mentioned it is for them to be able to justify this is the case and provide details that it is possible

Customer:

OK thanks it at least gives me a clearer idea of where I stand. Can I get what you have written sent to me, is that how the process works

Ben Jones :

You have a few options:
a) If you see a 'share' button and hover over it you can see the option to print.
b) You could copy and paste this conversation into a Word document or equivalent. You can then save and/or print it and refer to it in the future as necessary.
c) This conversation will be stored in your account on this site so you may return to view it or do any of the above at any time

Customer:

OK thank 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:



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