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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have been an employee of an organisation for 12 years which

Resolved Question:

I have been an employee of an organisation for 12 years which has been TUPE 'd across to another .
Our wages used to include a 9% addition to our monthly salary because we worked 'unsocial hours'. Our new employer says that he will put us on normal 'social hours' in order to save himself the 9%.
We have proof in the form of our pay slips since 2007 and a memo to the pay office dated 2007 which states we now get an extra 9% for unsocial hours which also states 'permanent'. It states individual names and is signed by our operations manager. We did not get a new contract regarding this.
Denise Branton
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. Has the new employer said specifically why they are looking to make these changes, is it just to save the money? Please note I am in tribunal today so may not be able to respond immediately. Thanks
JACUSTOMER-2rqtldl9- :

It is to save money as their new employees would work unsocial hours for basic pay.

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. The fact you did not receive a contract to confirm the changes would not necessarily matter because these could still be implied into your contract, as they have been consistently applied over the years and you have other correspondence to prove that they were introduced and were intended to be permanent.

Customer:

Firstly it has been 6 months since or transfer.

Customer:

We have had a further meeting with our employers today. They say that it is written into our TUPE that they may amend rotas and shifts if necessary. They did in fact change our rotas but kept unsocial hours within our rotas.

Customer:

It is totally for financial reasons as the intention is to swop new employees into our shifts as they get a standard rate. We would then go onto their shifts within social hours. All the shifts would stay the same but with different employees in different spots.Are they allowed to do this just to save the money?

Ben Jones :

It is not possible to have an agreement in the TUPE transfer to allow the employer to change your terms – whatever they say cannot overrule law, which protects our terms. The only way to do this is by the two exceptions mentioned above, either by showing the changes had nothing to do with the transfer or they were for an ETO reason. Whilst ETO includes ‘economical’ reasons, an employer simple preference to save money will unlikely qualify but if they were really struggling and to save the business they have to make these changes then it could qualify

Customer:

Thank you for your advice. I do not believe the company is struggling as they have spent hundreds of thousands on new vehicles. We have decided to make a formal grievance against the company as we now strongly believe we are being targeted as an easy way to improve the balance sheets.

Ben Jones :

ok that is a good first step, it is what you would expect to do in the circumstances, after that, depending on the outcome, you can appeal and then consider whether to take any further action, such as to the tribunal. Also the more of you there are the better as it would add a bit of weight, rather than if you just pursued this individually

Unless you have any other queries in relation to this, could you please take a second to leave a rating for my advice as it is an important part of our process. Many thanks

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