Hello was the latest take over done under a law known as TUPE? Was that ever mentioned?
Thank you. What is clearly happening here is that your employer is trying to change your contractual terms and conditions. There are a few ways in which an employer may try and make changes to an employee’s contract of employment. These are by:
· Receiving the employee’s express consent to the changes.
· Forcefully introducing the changes (called 'unilateral change of contract').
· Giving the employee notice to terminate their current contract and then offer them immediate re-engagement under a new contract that contains the new terms.
If the changes are introduced without the employee's consent, then the following options are available:
1. Start working on the new terms but making it clear in writing that you are working ‘under protest’. This means that you do not agree with the changes but feel forced to do so. In the meantime you should try and resolve the issue either by informal discussions or by raising a formal grievance.
2. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., you may wish to consider resigning and claiming constructive dismissal. The resignation must be done without unreasonable delay so as not to give the impression that the changes had been accepted. The claim must be submitted in an employment tribunal within 3 months of resigning and is subject to you having at least 2 years' continuous service. You would then seek compensation for loss of earnings resulting from the employer's actions.
3. If the employment is terminated and the employer offers re-engagement on the new terms that could potentially amount to unfair dismissal. However, the employer can try and justify the dismissal and the changes if they had a sound business reason for doing so. This could be pressing business needs requiring drastic changes for the company to survive. If no such reason exists, you can make a claim for unfair dismissal in an employment tribunal. The same time limit of 3 months to claim and the requirement to have 2 years' continuous would apply.
Finally, it is also worth mentioning that sometimes employment contracts may try to give the employer a general right to make changes to an employee’s contract. As such clauses give the employer the unreserved to change any term, so as to evade the general rule that changes must be mutually agreed, courts will rarely enforce such clauses. Nothing but the clearest language will be sufficient to create such a right and the situation must warrant it. Any attempt to rely on such clauses will still be subject to the requirement of the employer to act reasonably and can be challenged as above.
This is your basic legal position. I have more detailed advice for you in terms of the options you have on taking this further if no agreement can be reached with the employer, 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
Thank you. As mentioned this could potentially amount to constructive dismissal, which occurs when the following two elements are present:
· Serious breach of contract by the employer; and
· An acceptance of that breach by the employee, who in turn treats the contract of employment as at an end. The employee must act in response to the breach and must not delay any action too long.
A common breach by the employer occurs when it, or its employees, have broken the implied contractual term of trust and confidence. The conduct relied on could be a single act, or a series of less serious acts over a period of time, which together could be treated as serious enough (usually culminating in the 'last straw' scenario).
The affected employee would initially be expected to raise a formal grievance in order to officially bring their concerns to the employer's attention and give them an opportunity to try and resolve them. If the issues are so bad that the employee can't even face raising a grievance and going through the process, or if a grievance has been raised but has been unsuccessful, then they can consider resigning straight away.
If resignation appears to be the only option, it must be done without unreasonable delay so as not to give an impression that the employer's breach had been accepted. Any resignation would normally be with immediate effect and without providing any notice period. It is advisable to resign in writing, stating the reasons for the resignation and that this is being treated as constructive dismissal.
Following the resignation, the option of pursuing a claim for constructive dismissal exists. This is only available to employees who have at least 2 years' continuous service. There is a time limit of 3 months from the date of resignation to submit a claim in the employment tribunal.
An alternative way out is to approach the employer on a 'without prejudice' basis (i.e. off the record) to try and discuss the possibility of leaving under a settlement agreement. Under a settlement agreement, the employee gets compensated for leaving the company and in return promises not to make any claims against the employer in the future. It is essentially a clean break, although the employer does not have to agree to it so it will be subject to negotiation. In any event, there is nothing to lose by raising this possibility with them because you cannot be treated detrimentally for suggesting it and it would not be used against you.
Just to make a final, yet important point, that constructive dismissal can be a difficult claim to win as the burden of proof is entirely on the employee to show the required elements of a claim were present. Therefore, it should only be used as a last resort.
Hi Daniel, regardless of your rights, you cannot force the employer to act in the way they should or be fair in the circumstances. So in effect only a tribunal can decide what is fair and what you should be compensated in the event it is found the employer had acted unfairly.
This does not stop you from trying to negotiate some kind of a pay off though. As mentioned you can approach them to try and discuss a settlement agreement. The issue of advising what you can get is that no one can predict that – it is only going to be what the employer is willing to pay and what you are willing to accept. In terms of what a tribunal may look at compensating you for it would be a basic award, which is calculated in the same way as the statutory redundancy payment (you can calculate that by searching for a redundancy calculator online), and a compensatory award which is compensation for loss of earnings. So you would be looking at how long it has taken you or it may take you to get a similar paid job and be compensated for the losses in between. There is however a cap of around £75000 so it will not cover an indefinite period.
Yes you need to accept the new contract but state that you are doing so under protest and try to resolve this via the grievance route. If that does not help then you need to consider resigning and going for the constructive dismissal option. Remember that to do this you need to accept the contract and resign as a result of being forced to accept the changes
Hello i have replied on the separate thread you started