Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. Have you been told that this is what is going to happen once you move over to the new employer?
So there has been no direct threat that they are actually going to change your contract?
OK thanks. 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.
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.
This is your basic legal position. I have more detailed advice for you in terms of the ways you can challenge any potential changes, 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
I think our replies crossed
What do you need clarifying? Please note I may not be able to reply until later this afternoon as I am not online continuously today thanks
Hi there, as mentioned in my original post “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 as you can see your terms and condition should remain the same after the transfer. There are very limited circumstances in which changes can be made but they must be linked to an economic, technical or organisation reason, not just because they feel like they need to make changes or are trying to make it a better deal for themselves. But if there are urgent requirements to make savings then it may be possible to use the economic grounds, although you could consider resigning I response to the changes and claiming constructive dismissal.
I am not sure if any of this would qualify as an economic reason to avoid TUPE protection so whilst there is nothing stopping them from trying to make the changes, they can be challenged as mentioned
There is no such thing as a common economic reason, there are so many possible scenarios and to be honest what works in one case will not necessarily be accepted in another. It can and it is very case specific, depending on the specific circumstances of the situation. For it to be valid the economic reason has to entail changes to the workforce, so it could include a change in:
· The location of the business
· The number of employees.
· The functions performed by employees.
whatever the law says no one can force the employer to act within it...that is why if they break employment laws your eventual right to challenge it would be in tribunal, who can determine if they were in the wrong and issue compensation. If you succeed in a constructive dismissal claim then that will potentially cover redundancy you would have received and as to legal fees you do not actually have to get a lawyer to act for you, you can make the claim yourself if needed
of course, all the best and do not hesitate to contact me if needed