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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46798
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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I manage a small farmshop have done years we have been given

Customer Question

I manage a small farmshop have done for 13 years we have been given 5 weeks notice that we are being tupeed to a new tenant taking over the shop can she take away my role cut my pay and hours I do have a contract
Submitted: 10 months ago.
Category: Law
Expert:  Ben Jones replied 10 months ago.

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?

Customer: replied 10 months ago.
we knew the shop was to be leased but told nothing was moving forward until 2 days ago today we have had letters stating we are tupeed and asking if we want to elect representatives there is only 5 of us
Customer: replied 10 months ago.
we feel o small for representives
Expert:  Ben Jones replied 10 months ago.

So there has been no direct threat that they are actually going to change your contract?

Customer: replied 10 months ago.
no not yet
Expert:  Ben Jones replied 10 months ago.

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

Customer: replied 10 months ago.
but im sure I can not stay on in my role has manager
Expert:  Ben Jones replied 10 months ago.

I think our replies crossed

Customer: replied 10 months ago.
im getting a bit confused now all we have been told is that tupe will apply and she is taking over on 27th august
Expert:  Ben Jones replied 10 months ago.

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

Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 46798
Experience: Qualified Solicitor - Please start your question with 'For Ben Jones'
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Customer: replied 10 months ago.
I would like to know how tupe works and can she change my role my pay of £25000 a year and my hours I would really like to be made redundant is this something I could insist on this is a independent shop owned by Cholmondeley estate whom I have lost all trust in over the past 6 months up until 2 days ago we were being kept completely in the dark and constantly told nothing was happening
Customer: replied 10 months ago.
also can she use ETO saying she needs to change my contract because the shop is losing money and she needs to turn the business around can this be a economic reason
Expert:  Ben Jones replied 10 months ago.

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.

Customer: replied 10 months ago.
the shop has been running at a loss for many years and the estate were always happy to accept this I have seen the last 2 years spread sheets and they have been carrying forward 2 very large loans from the estate to refurbish the shop if these 2 loans were not carried forward do you think it would not have run at a loss the new tenant will not have these loans to carry forward and is renting the shop on a very low rent of £100 a month to help her I am sure with out these loans it would easy to put the shop in profit
Expert:  Ben Jones replied 10 months ago.

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

Customer: replied 10 months ago.
what are the usual economic reasons sorry to ask so many questions I just know I will know my fate next week and I want to prepared
Expert:  Ben Jones replied 10 months ago.

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.

Customer: replied 10 months ago.
basially I have to see what I am offered and if I don't like it I say good bye to 13 years of redundancy or spend hundreds of pounds in legal fees
Expert:  Ben Jones replied 10 months ago.

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

Customer: replied 10 months ago.
thank you wish me luck
Expert:  Ben Jones replied 10 months ago.

of course, all the best and do not hesitate to contact me if needed

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