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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50148
Experience:  Qualified Employment Solicitor
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We've been told that as our employer becomes a new joint venture,

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We've been told that as our employer becomes a new joint venture, we are being TUPE'd. We will not be given new contracts, just a letter (yet to be received) stating that essentially our conditions of employment, including benefits etc, are unchanged. Under my current contract, I am under 3 months notice. We move into the new company on July 6. Where would I stand if I resign, say, in June or the final day in the current company(July 3). Would I still be expected to move into the new company to work the rest of my notice? Could I be forced to resign earlier so that I finish before moving into the new company? I am trying to second guess what my present employer might do. Thank you.
Ben Jones :

Hello, my name is ***** ***** it is my pleasure to assist you with your question today. If you were to resign with less than 3 months left before the transfer is due to take place then you will move over to the new company whilst serving your notice period and you would be expected to work the rest of the notice with the new employer. It is however possible to agree with the employer to allow you to leave earlier than the full notice period - they can decide either to pay you for the remainder of the notice period or they could just pay you until your last actual day. It is up to them whether they want to pay you for the whole notice period if you leave early - they do not have to do that.

Ben Jones :

You cannot be forced to resign early unless your contract has a clause which entitles the employer to pay you in lieu of notice. If such a clause exists then they could say that once you have submitted your resignation you do not have to work your notice period but be paid in lieu of notice instead and finish with immediate effect

Ben Jones :

I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you


Ben, Thank you. Given your answer, I have one further worry please. We've been told that the TUPE arrangements only need to hold for 12 months. I guess that means in principle, T & Cs could be changed after this time. If I resign beforehand (before any changes are agreed on), could the company subsequently change the terms of, for example, a deferred (final salary) pension.

Ben Jones :

it is incorrect that TUPE arrangements only hold for a year - this is not stated anywhere in law. They actually have to remain indefinitely unless the employer can justify that any proposed changes are needed for technical, economic or organisational purposes, otherwise they will be unfair. So technically an employer can seek to make changes as son as you transfer but they cannot justify these changes as being fair unless they can show they were for one of these excepted reasons


Ben, Thank you. One final clarification please to make sure I have understood your last answer. So, I resign in July, which means my contractual notice period makes my leaving date in September. Assume they hold me to this, I transfer into the new company & therefore work my notice period within the latter. On leaving. I choose to defer taking both the final salary & the additional money contribution pensions that I have. Under TUPE, both of these are equivalent in the new company to that provided in the old company (with a continuous length of service etc). For the final salary portion, would it be then be possible sometime in the future, either before or after I begin to collect ,for the new company to renege on it being defined contribution; namely, attempt to use the justifications you mentioned to somehow do this? Thank you.

Ben Jones :

that is unfortunately a question for a pensions law adviser - not employment - they are actually two different areas. I can advise on the employment law parts, such as tupe and the queries I already answered but for the changes in pensions you would need to post a new question aimed at a pensions lawyer, sorry

Customer: replied 3 years ago.

Ben. Thank you. I'd like to leave a rating but the faces have disappeared now from the web page?

hi you should be able to leave one on here, an to see the faces now?
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