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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46170
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I have been working since 2003 as Customer Services

Customer Question

Hi, I have been working since 2003 for BHS as Customer Services Assistant. Last year in Ago my contract was TUPE over Compass Group. I got a letter from Compass saying that my position has been made redundant and my employment terminates on 5 th Ago. Compass is trying to find me and my colleagues alternative job within the Company. My area manager told me yesterday that if they offer me a job I can take my length of service (13 years) but not my 26 holidays days. Is it legal that I lose my holidays days? I applied for a job within th e company and the job comes with 20 days. I understood when they did TUPE over last year that they could not change my contract. My contract is 37.5 hours a week, Monday to Friday, 26 holidays days. Can they make me work weekends? Thanks
Submitted: 8 months ago.
Category: Law
Expert:  Ben Jones replied 8 months ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Expert:  Ben Jones replied 8 months ago.

I will look into this for you but please can you also tell me what the ideal outcome would be for you in this situation?

Customer: replied 8 months ago.
I will happy if they get me a job similar with my contract rights and holidays
Customer: replied 8 months ago.
I want to know if is legal what my area manager told me yesterday about getting me into another job with 20 days holidays, I thought that my contract was protected under TUPE regulations
Customer: replied 8 months ago.
If they don't find me a suitable job I rather to take the redundancy money , but Compass is trying to avoid it, which I understand.But I want to know if I am right and how to tell my area manager.
Customer: replied 8 months ago.
Please if u need more information don't hesitate asking me, I am waiting for ur answer thanks
Expert:  Ben Jones replied 8 months ago.

OK thank you, ***** ***** it with me. I am in court today so will prepare my advice during the day and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Thank you.

Customer: replied 8 months ago.
But will u answer me today?
Expert:  Ben Jones replied 8 months ago.

Many thanks for your patience. When you transfer under TUPE your existing contracts does indeed transfer to the new employer as far as you remain in the same position you did before the transfer. So let’s say you worked in position X and a new employer took over the business and continued employing you in that position – your existing contract and its benefits would have transferred over and you would have kept them. However, if you no longer work in position X and you change jobs in the new employer, your protection would no longer applied as it only protected you as long as you were doing position X.

In your case you are being made redundant and the employer will have a duty to try and offer you suitable alternative employment. If you choose to stay and do another job with the same employer your length of service will be protected and that happens regardless of TUPE. However, your TUPE protection will no longer apply because you re changing contracts and are no longer doing the position X which was the one protected.

So the key here for you is whether you believe that what they have offered you is suitable or not. If it is and you accept it then you will continue working in that new job on the terms which were offered to you but without the TUPE protection as that no longer applies. If you do not think it is suitable you can reject it and opt for redundancy on your current terms instead.

This is your basic legal position. I have more detailed advice for you in terms of the law on deciding suitability of offered positions, 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, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46170
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
Ben Jones and other Law Specialists are ready to help you
Customer: replied 8 months ago.
Thanks so much for ur answer. I would like to know if they offer me the same job that I was doing (catering assistant) and was redundant in another place I would be protected by TUPE with my length of service and holidays paid...But if they offer me another job I would not be protected just my length of service. Could u please advice me about suitable jobs meaning for the company? So far they offer us low pay jobs, less hours, working weekend and all the team refuse to take them. Everybody is seeking legal advice. Thanks, ***** ***** very worried because they know that we don't really know the law on this matter.
Expert:  Ben Jones replied 8 months ago.

It is not just the type of job, i.e. catering assistant, the whole position will be taken into account, such as is it in a different location, with different tasks, etc.

So the main issue is what makes an offer suitable and when can an employee reasonably refuse it. The most common factors that would make an offer unsuitable are:

· Job content/status – drop in status, substantial changes in duties, etc.

· Pay and other benefits – significant drop in earnings/benefits (e.g. basic pay, bonuses, overtime, sick pay, holidays)

· Working hours – change in shift pattern, removal of overtime, extension/reduction of working hours

· Change of workplace – new location making it unreasonable to travel to the new place of work

· Job prospects – going from permanent to temporary work, becoming self-employed or being employed on a fixed-term contract.

Where an offer of alternative employment has been made and its terms and conditions are different to the employee's current terms, they have the right to a 4-week trial period. If during the trial period they decide that the job is not suitable they should tell their employer straight away. This will not affect their employment rights, including the right to receive statutory redundancy pay.

Customer: replied 8 months ago.
one more question, tomorrow I have a trial for Catering Assistant position. I looked for the job myself within the Compass system. It is 37.5 hours, Monday to Friday, 20 days holidays. The problem is that the hours change (rota), one day starts at 7, another day at 9...My working hours at the moment are 8.30-16.30 permanent. I got another responsibilities in the eve and I could not finish later than 5. If I refuse this job, Compass would take it as I resign and I will lose redundancy money? Thanks so much for ur advice.
Expert:  Ben Jones replied 8 months ago.

No not necessarily - you have to remember that the suitability of a position will depend on your personal circumstances so even though in most circumstances it may be considered suitable, as it stands it is not

Customer: replied 8 months ago.
if I said I did not take the job because I cannot finish late 2-3 days a week x personal circumstances that it should not be a problem? Sorry too many questions, too worried...
Expert:  Ben Jones replied 8 months ago.

It does not guarantee there will be no problem unfortunately - for example the employer could refuse to accept that the refusal was reasonable and refuse to pay redundancy. In that case you will have to challenge them in tribunal but if you do so at least you will have a reasonable excuse as to why you did not take it

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