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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50177
Experience:  Qualified Employment Solicitor
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In August 2014, I and my workmates, were 'TUPE'd' over from

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In August 2014, I and my workmates, were 'TUPE'd' over from one contractor to another.
Clearly, we expected all T & C's of our employment to be honoured by our new employer.
We are paid 'monthly in arrears'. At our new employer's request, our pay date was varied,with our agreement, from the last Friday of the month, to the 26th of the month, after their takeover.
Earlier this year, our employer announced from August, this year, we shall be paid on the 10th of the month, following the completed month of work; August's pay date will now be 10th of September, September's pay will be received on 10th October and so on.
There has been no meaningful negotiation on the matter. Employees have not been asked individually if they agree to this. The employer has declared, in response to protests, they are not acting illegally, the change will be implemented regardless.
Can an employer act unilaterally to implement this apparent breach of our original terms and conditions?
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. How will these changes affect you?
Customer: replied 2 years ago.

Our pay will now be held not less than 10 days 'in hand', assuming an employer is allowed to leave the payment of wages until the last day of the month worked. In fact, compared with existing arrangement, it is two weeks 'in hand'.

None of the employees want this and it appears to ride rough-shod over our TUPE'd terms and conditions, and the principle all changes have to be mutually agreed.

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. The issue is that you cannot juts make a claim and the only way to challenge it is to resign and claim constructive dismissal so quite a risky move if you are just challenging a change in the way you are paid. Instead you may wish to consider the internal grievance route. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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Customer: replied 2 years ago.

Thanks for your reply!

They are claiming this to be part of a company-wide change.

This is just one grievance among several that are emerging with this new employer. We are low-paid workers with few bargaining chips.

I have enough to explain to my colleagues, our situation.

Thanks again


You are most welcome best of kick stu getting this resolved. If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you