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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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I have worked same company as a Temporary employee

Resolved Question:

Hi,
I have worked for the same company as a Temporary employee since 2005. I am paid directly by the company. My contract has not been updated since.
Am I entitled to the same rights/conditions as a Permanent employee?
Thanks,
John
Submitted: 2 years ago.
Category: Law
Expert:  Ben Jones replied 2 years ago.
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What specific rights are you enquiring about?
Customer: replied 2 years ago.

Sick pay

Medical cover

Life Assurance

Income protection

Pension

I am currently off long term sick and could only claim SSP

The office where I work is being closed at the end of June and I along with others will be made redundant. I have no issues with this as I have been offered same terms as other employees.

I want to know if retrospectively I can claim for permanent employees benefits after nearly 10 years working there.

Incidentally my e mail address is***@******.*** but your system said it was registered to another user? I've given my G mail address but rarely use it

Expert:  Ben Jones replied 2 years ago.
when you say you were a temporary employee what do you mean - were you fixed termn contracts, working through an agency, etc?
Customer: replied 2 years ago.

Ben,

No it's open ended and I am paid directly by the company.

I can send you my original, and only contract and also permanent employee handbooks. The co I work for was bought by KBR and I was TUPE'd across but no new contract offered.

Expert:  Ben Jones replied 2 years ago.
You would actually be a permanent employee, whatever the company refers to you as. However, it does not mean that all employees would get the same rights and benefits and there could be a difference in rights even if you are all treated as permanent employees.
So you could have person A who is permanent and gets company sick pay, medical cover, income protection, etc and person B who does the same or any other job with the company and is also permanent but who does not get any of these benefits. The law does not state that all permanent employees must have the same rights and benefits, especially when it comes to benefits given at the discretion of the company. You would still get your basic employment rights as anyone else, such as the right to receive the minimum wage, paid holidays, statutry sick pay, redundancy pay, etc but any other additional benefits are given at the company’s discretion and there could be a difference between all employees and what each is entitled to.
You would have had protection over that had you been a fixed term employee and were treated less favourable than a permanent employee but not if you are just a normal employee which you appear to be.
Also you would have retained your original terms before the TUPE transfer. So if you had less favourable terms before being TUPE’d over and the employees of the new company had better terms than you, then the employer is not obliged to change your terms to reflect those of its existing employees. TUPE protection can work both ways – you are protected to retain your existing terms, whether they are better or worse. Sometimes it works in your favour if you have better terms but if you have worse terms then you still keep them without being able to claim that you should be move to the more favourable terms of the existing employees.
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
Customer: replied 2 years ago.

Ben,

Definitely not the case the Permanent employee handbooks are identical the only differences being some benefits increase for higher job grades.

So if I should now be classed as a permanent employee am I not entitled to the same benefits?

Expert:  Ben Jones replied 2 years ago.
The law does not distinguish between permanent and temporary employees. You are permanent from day one unless you are classified as a fixed term employee or an agency worker or self employed. So this comes down to the contract and handbooks and whether they actually specify a definition of what the company classifies a permanent employee. As mentioned, these are all discretionary benefits that are only given at the employer’s discretion and they decide what criteria apply for you to be entitled to them. So if there is no definition as to what a permanent employee is then you could certainly argue that you should be entitled to those too. That is unless the handbook only applied to you after the transfer in which case you cannot claim rights over what is in there as that would only apply to the company’s existing employees – you would have your old terms with you and cannot claim to be bound by the new employer’s own terms.
Does this clarify things for you a bit more?
Customer: replied 2 years ago.

No.

I thought that after 4 years as a temporary employee you are regarded as a permanent employee with their benefits

Expert:  Ben Jones replied 2 years ago.
No that is in relation to fixed term employees only, this is not the same as temporary employees - you need to have been employed on successive fixed term contracts for more than 4 years for that to apply
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