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Ben Jones
Ben Jones, UK Lawyer
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We are being TUPE from Local Government to private company

Resolved Question:

We are being TUPE from Local Government to private company - How long does TUPE last?
With regard to my current position in my present employment- I am an Administration Assistant where I supervise 5 members of staff (Clerical Assistants) I have been advised that when the transfer takes we will all be moving as Clerical Assistants if this is the case I will be degraded and have another drop in salary - Where do I stand?
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. Why can the employer not keep your current positions?

Customer: They have said that Terms and Conditions will remain unchanged but today when visiting a factory of the company we are being TUPE over to, our manager said we are all being transferred as Clerical Assistants
Ben Jones :

ok thanks let me get my response ready please

Customer: Thanks
Ben Jones :

TUPE protection is indefinite, meaning that 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.


Ben Jones :

Hope this clarifies your position? If you could please let me know that would be great, thank you

Customer: Thank you for your advice, I am worried that my job role will change and I will be degraded.
Ben Jones :

there is nothing stopping the employer from changing the role but then your protection under TUPE would kick in and your rights will depend on the reasons for the changes and if the employer will be able to justify them as falling within an ETO reason, but if they cannot (and as mentioned that is a very restrictive interpretation), then the changes can be unlawful and you can pursue this further.

Ben Jones :

Hope this answers your follow up query?

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