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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47361
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I enquire on behalf of my granddaughter. please read

Customer Question

I enquire on behalf of my granddaughter. For I please read she. Thanks.
I have been employed at the school for some four years. My school has just been put together with 3 other schools. We are told we have been tupe transferred. I was upgraded in sept. They now say that, that is a variation of contract and as a result they have considerably changed my sick pay entitlement. I thought that my service was the most important issue, Which protected my terms and conditions.....not my change of grade.
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Hello, my name is***** am a qualified solicitor and it is my pleasure to assist you with your question today. So to clarify - she was upgraded to a new position before the transfer, then once the transfers has taken place the new employer has decided to change her sick pay entitlement because of the upgrade?
Customer: replied 1 year ago.
she was upgraded to a more senior position........then the schools came together............hence the TUPE
What difference does that make to her service period or her terms and conditions.
is she or is she not protected by TUPE for a period of at least one year.
I have checked Campbell vs Martin McCall which seems to indicate that she is protected....please advise
Customer: replied 1 year ago.
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Expert:  Ben Jones replied 1 year ago.
If TUPE applies to a transfer, those employees assigned to the transferring business will move to the new employer on their existing terms and 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. So if she was upgraded before the transfer, the new employer should honour that and take her on in the same job and on the same terms she was on just before the transfer. Her continuity of service will be preserved as well and her service with the old employer up to the date of transfer will be included in calculating her continuous length of employment. However, I should point out that TUPE protection is not for a specified period of time, it can potentially be indefinite and the key is that any changes introduced as part of the transfer are automatically unfair unless they are needed for an economic, technical or organisational reason. This is your basic legal position. I have more detailed advice for you with regard to when changes may be permitted, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, leaving a rating will not close the question and we can continue this discussion. Thank you
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Expert:  Ben Jones replied 1 year ago.
Many thanks for your rating. So as mentioned, if TUPE applies to a transfer, those employees assigned to the transferring business will move to the new employer on their existing terms and conditions.
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 helps

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