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Jenny
Jenny, Solicitor
Category: Law
Satisfied Customers: 6339
Experience:  Qualified Solicitor specialising in Employment Law and general legal matters. Please start your question For Jenny Only
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My job has been protected by the TUPE legislation

Resolved Question:

My job has been protected by the TUPE legislation for almost 3 years. Each year I receive a pay review in line with my contract but don’t get a rise like other colleagues do (who are on different terms and conditions). So basically, because my role is protected by TUPE and my contract states ‘ your salary will be reviewed annually but there is no Automatic increase, our HR department inform me this is the reason why I don’t receive any pay award. It is no possible for my job role to be transferred to the new employer because it technically doesn’t exist. It only exists because its protected under TUPE. My question is, is there anyway I could benefit from a pay increase under TUPE protection.? Thanks
Justin
Submitted: 2 years ago.
Category: Law
Expert:  Jenny replied 2 years ago.
taratill :

Hi Justin, my name is ***** ***** I am happy to help you today. Did you receive pay increases prior to the TUPE transfer?

Customer:

Hi Jenny.

Customer:

one moment ..jus bear with me

Customer:

I commenced employment with L.N.T limited on 19th December 2011. In June 2012 (6 months on) the part of the business i work for was sold to a new operator (Sanctuary). Pay reviews (as stated in my contract of employment) are reviewed in October (Annually) but there is no automatic increase. so .....the part of the business i work for wasnt owned long enough for the salary to be reviewed in the first 12 months because it was sold 6 months later.

taratill :

Are you the only person who has transferred and therefore the only person who does not receive an annual pay increase?

Customer:

all the staff who moved over with me to the new owner are protected the same as me. any staff that were recruited.....would come under Sanctuarys terms and conditions. As time has progressed, there are only a small number of people....that remain on LNT terms and conditions. The issue i have got....is.....Im a Night Deputy Manager.....a post that existed in LNT but it doesnt exist in Sanctuary.....the most equivilant post they have is Senior Health Care Assistant.....which is as you can imagine....a drop in position grade.....

taratill :

Do you know if the other remaining transferred staff have also not received a payrise?

Customer:

all staff on Sanctuarys terms and conditons recieve pay rises every year........the problem is now.....Sanctuarys senior health carers will overtake me in rate of pay is about two years time. each year a pay increase is given .....the more they catch up with me.....

The remaining staff including my counterpart (Day Deputy)....have received no pay rises

Customer:

both me and the day deputy have estimated that in two years time......the senior care staff will overtake us both......not sure what to do or who to turn to about it.

taratill :

There is nothing under TUPE law to protect you in this situation. The employer is right that TUPE actually prevents them from changing terms and conditions. They are obviously interpreting the clause of the contract to suit themselves in that a generous interpretation would allow them to give you a payrise.

taratill :

You can however, raise a grievance to say that their interpretation amounts to a breach of trust and confidence and that it is unfair for you to be expected to continue to work year in year out without a payrise.

Customer:

well im glad u mentioned that because we (me and the day deputy) have raised a grievance....and have an appoitment booked to meet HR Business partner ...next week. I would agree that it does seem like an interpretation'' to suit themselves. One thing i would like to put to the HR Business partner though when we do meet them....If i could just run this past you first please...

Customer:

If we we was to suggest....'''could our pay review be based on and judged our performace'' rather than what their interpretation of the contract is.....would the TUPE prevent them from awarding us a pay rise based on performance review or could they 'in theory' get around it that way and award us'?

Customer:

Im very weak on TUPE sorry :)

taratill :

Hi they are using TUPE as an excuse, there is nothing to prevent them from giving you a payrise, your contract allows for it but does not guarantee it.

Customer:

because there is 'no automatic increase'........meaning they could if they wanted to.......so thats what i could argue

taratill :

Yes exactly.

taratill :

Please do let me know if you have any further questions. If I have answered your question I would be grateful if you would take the time to rate my answer. Thank you and all the best.

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