Employment Lawyers Can Answer Your Employment Law Questions
Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for?
8 years 8 months
is your current rote a contractual one? Is it something defined in your contract?
Not sure but possibly not defined in contract. The route was advertised internally I applied and was successful - previously did a school route which was 28 hours. This was 8 months ago & was not informed that the route would be up for tender at any stage and certainly not so soon.
So is it part of the job that routes could change from time to time? Also are you contracted to do a specific number of hours or does that vary too?
It is not part of the job that routes can change on the contrary the service is advertised as having a regular dedicated driver. However the routes come up for tender occasionally and may be acquired by competitors as in this case. Normally this is at the end of the school year whereas out of the blue I was told yesterday that mine would move after Easter in 5 weeks time. A while back several of the routes were lost and everyone was given the option to transfer under TUPE but this option has not been mentioned this time.
ok thank I will post shortly with a full response
By transferring over to the new company you will likely be protected under TUPE, which applies when a business undertaking, or part of one, is transferred to a new employer or if there is a service provision change, such as a new service provider taking over an existing contract.
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.
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.
What I need to know is whether TUPE applies in my case - I have not as yet been offered the option of transferring to the new company and I would like to know if I have a right to transfer with the job. The job still exists in exactly the same format.
TUPE would exist if the new employer is taking over a specific service, or part of the business to which you are assigned. So let's say they are taking over a specific route from the current operator - then that would most likely mean it applies. Or if they are taking a specific art of the business and you were assigned to it, then again it is very likely it would apply. So the likelihood is that you can transfer over to the new employer and whilst it would generally guarantee you the job, that is not always the case and it takes me back to the original response above - there are times when changes can be made.
Does this clarify your follow up query?
Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this? I just need to know whether you need further help or if I can close the question? Thank you