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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 48156
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I am an assistant manager at a pub which has just been taken

Resolved Question:

I am an assistant manager at a pub which has just been taken over by new owners. They want me to go to a meeting tomorrow to discuss the new structure they are putting in place. They have said they are going to demote me. can they do this, can they reduce my pay? Under TUPE I thought they had to keep me on my current terms and conditions? Need advice please! Thk You
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. have you been transferred under TUPE and can you tell me your length of service under your old employer please

Customer:

I assume I have - I worked for my old employers for two and a half years (Started on 12 Sept 2011). They then sold the pub to new people on 12th May 2014.

Ben Jones :

Ok thank you leave it with me I need to look up a few things and then get my advice ready.I will post back on here when done there is no need to wait and you will receive an email when I have responded. I need to go off line for a few hours but will get my advice ready for you latter this evening regards ben

Ben Jones :

Many thanks for your patience. TUPE applies when a business undertaking, or part of one, is transferred to a new employer or if there is a service provision change, such as a new service provider taking over an existing contract.


 


If TUPE applies to a transfer, which it is very likely to in this case, 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.


 


Hope this clarifies your position?

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether to close the question or not? Thanks

Customer:

Thanks for the info - Just one more question If they offer me a new position, which will be a demotion, can they reduce my pay or not? Thks

Ben Jones :

No, the same rules would apply - this is still a change to your existing contract, regardless of whether you stay in the same job or not

Ben Jones :

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