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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50209
Experience:  Qualified Employment Solicitor
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Having worked years we have been transferred to a contractor

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Having worked for nhs for 20 years we have been transferred to a contractor under tupe . I am now being made redundant and am only being offered statutory redundancy . I thought that all terms and conditions would remain in tact and I should receive the nhs redundancy payment . Am I correct in thinking this ? I can't seem to get a yes or no answer for this can you please help

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today. Were the NHS redundancy terms included in your previous contract with the NHS?

Customer: replied 1 year ago.
I was on agenda for change with all the usual terms and conditions I think

When did you transfer?

Customer: replied 1 year ago.
21st Jan 2016

Ok thanks. The Agenda for Change term are a collective agreement, they are not automatically part of the contract you had with the NHS. However they can be incorporated in your contract. Therefore, it is possible that they will be protected under TUPE, which only protects contractual terms.

In fact a case in the European courts commented:

“Following the transfer, the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement.”

So assuming the collective agreement terms have not been changed by the new employer in any way since the transfer, you should be able to rely on them still.

There is one exclusion which states the terms of a collective agreement will not come into force after a transfer if:

{C}· They are agreed and come into force after the date of the transfer; and

{C}· The new employer is not a participant to the collective bargaining

So this only applies if the terms you are relying on had been introduced after the transfer.

Whatever your rights you cannot force the current employer to agree the old terms apply still – if they refuse to, then you may have to consider challenging this in tribunal, which is the only organisation that can issue a legally binding decision on the issue.

This is your basic legal position. I have more detailed advice for you in terms of the steps you can follow if you decide to take this further, 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

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.
Thank you, ***** *****'t entirely understand all of what was written, but if after the transfer there were changes made to the collective agreement, would I have had to have been consulted of any changes, and would I have had to sign anything so I was made aware of any big changes like losing my entitlement to nhs redundancy pay or would this be done without my knowledge?

Thank you. If any changes were made to the CA after the transfer then the new employer must have been part of these changes, they must have participated in the bargaining process. There is no requirement for the NHS to have consulted with you or informed you of any changes post transfer - you are no longer their responsibility after that.

If you are made redundant without being paid the redundancy pay you believe you are entitled to, then you have 3 months to consider making a claim in tribunal.

A new feature in the employment tribunal’s claims process is mandatory early conciliation with ACAS. This requires prospective claimants to notify ACAS and provide details of their intended claim and they would then try to negotiate between the claimant and respondent to seek out of court settlement in order to avoid having to take the claim to the tribunal. It is possible for the parties to refuse to engage in these negotiations, or that they are unsuccessful, in which case they would get permission to proceed with making the claim in the tribunal.

If negotiations are initiated and settlement is reached, then the claimant would agree not to proceed with the claim in return for the agreed financial settlement.

The conciliation procedure and the form to fill in can be found here:

In terms of the time limits within which a claim must be presented, the early conciliation process places a ‘stop’ on that and the time between notifying ACAS and them issuing permission to proceed with the claim would not count for the purposes of these time limits.