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Ben Jones
Ben Jones, UK Lawyer
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I work for a dental practice which is being sold by share transfer.

Resolved Question:

I work for a dental practice which is being sold by share transfer. I understand I am therefore not covered by TUPE legislation. What rights do i have under my existing employment contract?
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.Can you please tell me how long have you have you been with your employer

Customer:

2 years on april 10

Customer:

Transaction is now likely to be March 31 or April 1, 2014

Customer:

When is someone going to answer my question?

Expert:  Ben Jones replied 3 years ago.
Hi, sorry but I was offline by the time you had replied last night and have only just returned online.

If TUPE does not apply to your transfer, then it basically means that there is no automatic protection in terms of a guaranteed move to the new employer and also no obligation on them to take you on with your existing terms and conditions. TUPE would give rights to the employees it covers in a sense that the new employer is legally obliged to keep the employees’ contractual terms and can only make changes in limited circumstances. It also means that a failure to take someone on under TUPE would make the dismissal unfair and could be challenged by the affected employee.

However, if TUPE does not apply, it means that the contract would still transfer and can be taken on by the new employer but they could potentially seek to make changes to it as the strict protection under TUPE would not be there. They could just leave the old contract as it is but if they want to make changes they could potentially make these. Another issue is that you are not protected against unfair dismissal (not just yet anyway) because you need 2 years’ continuous service for that. We are only talking 10 days from the date of the transfer to the date when you get that protection but it means that the employer could potentially even dismiss you before you reach the 2 years’ service and you won’t be able to challenge the dismissal. So if they do not want to take you on they could refuse to do so, but of course they could just take you on anyway and even keep your old contract, but just remember that they could try and make some changes under it if they have to.

I hope this has answered your query. Please take a second to leave a positive rating, or if you need me to clarify anything before you go - please get back to me and I will assist further as best as I can. Thank you and feel free to bookmark my profile for future help:


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Customer: replied 3 years ago.

I accept that what you have provided is "the law" and you have confirmed my research. What are my options as an employee? Can the new owner impose a new contract without my agreement? In other words, if they make the change within the 2 years and i do not agree, is my only recourse to resign? In reality the change of ownership could not have happened without my efforts to support the current employer...I suppose this is all irrelevant as the balance of power has shifted totally to the employer with the change in the law.

Expert:  Ben Jones replied 3 years ago.
Yes, unfortunately what efforts you went through to facilitate the transfer would be irrelevant from a legal point of view in the circumstances and it is more of a moral issue than a legal one.

If the employer wanted to change your contract then there are a few ways in which it can be done. These are by:
• Receiving the employee’s express consent to the changes.
• Forcefully introducing the changes (called 'unilateral change of contract').
• Giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the new terms.

If the changes are introduced without the employee's consent, then the following options are available:

1. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance.

2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions.

3. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, you can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply.

If your original question has been answered I would be grateful if you could please quickly rate my answer - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Customer: replied 3 years ago.
Ok, last question and I will provide positive rating!

If I take 10 days holiday now, so that when I return to work, I will have 2 years employment, any change that the new owner wished to discuss would then be covered by the full employment regs. Correct? Feasible? Thanks
Expert:  Ben Jones replied 3 years ago.
Yes that is correct and it could certainly work, unless the employer tries to do something whilst you are in holiday. Remember you continue being an employee during that time and the employer could still try to terminate your contract even if you are on holiday, but if they do not bother to do so and just wait for you to return before they do anything then you will have the enhanced protection, having accumulated 2 years' service by then
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