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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 66463
Experience:  Qualified Employment Solicitor
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I would like to know if after a 6 months takeover from other

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Good Morning. I would like to know if after a 6 months takeover from other company it's possible the new company to change the basic wage based on a comission pay plan? Thank you
Assistant: Was this discussed with a manager or HR? Or with a lawyer?
Customer: Nothing just received a letter informing that my basic will reduce based on acquisition of the new company in December and attached I had the new commission pay plan, where the basic droped to 13000 when before was 18000. They did that to me and more 2 people, the old salesmen of bought company
Assistant: Is the relevant person an employee, freelancer, consultant or contractor? Does the person belong to a union?
Customer: No
Assistant: Anything else you want the Lawyer to know before I connect you?
Customer: Company size between(###) ###-#### motor trade, sales representative for a car manufacturer

Hello, I’m Ben, a UK lawyer and will be dealing with your case today. Firstly, I need to ask some initial questions to determine the legal position.

How long have you worked for the business, all in all?

Customer: replied 6 months ago.

and did you receive a new contract when the new company took over?

Customer: replied 6 months ago.
No don't I can't remember

OK and how long have you worked there for please?

Customer: replied 6 months ago.
I started in July 2015, the takeover was in April this year

Thank you. I will get back to you with my answer as soon as I can, which will be at some point today. The system will notify you when this happens. Please do not reply in the meantime as this may unnecessarily delay my response. Many thanks.

Can I just check if you transferred under TUPE?

Customer: replied 6 months ago.
Not sure. I believe so. Do you know where I can check that information?

You should have been told at the time of transfer and leading up to it. In the end it would automatically occur if a business is being taken over by another and they continue to run the same business as before and it was not a transfer through share sale (i.e. it should be an asset/goodwill sale). Does that sound about right in your case?

Customer: replied 6 months ago.
We just received an email informing who was the new company.
Customer: replied 6 months ago.
Now I received a letter saying "Further to the recent acquisition of company A by Company B, in your role of sales executive byour basic annual salary will reduce from £18000 to £15000. Your pay plan will also change to that enclosed with this letter.
Customer: replied 6 months ago.
The date of this is effective from is 1st December. Should you wish to waive the one-month notice period and for the plan to come into effect in November then please confirm this asap.
In the last sentence of the same letter says: "All other terms and conditions of your employment remain unchanged."
Customer: replied 6 months ago.
Not sure if was an asset or good will sale I believe was an acquisition altought they kept the motorbike company and it's still registered and I still receive for the name of the old company. Changes in the pay plan used to happen often but not in the basic wage, altought that change came after a new plan implementation a year later, they told me that was due to my performance, but my manager told me now that was because I was brand certified, altought that happened a year ago before my basic wage was raised. I hope that helps. Thank you

ok it is still a bit unclear, perhaps you can ask them directly if your transfer was covered by TUPE, that may provide more insight and allow me to comment more accurately?

Customer: replied 6 months ago.
Thank you. I'll ask them. Do you think you should send an email asking the reason for the reduction at this moment. I have more 2 colleagues in the same situation and they kind of agree with the new terms, referring to the new pay plan that have some positives.

you can certainly do so, you have a right to at least ask, there is no harm in doing so at the same time

Customer: replied 6 months ago.
The previous company was dissolved by Voluntary strike off
Customer: replied 6 months ago.
I don't know if helps but previous company was Blade Motor Group and the company that bought us is Heritage Automotive based on Salisbury.

OK I would say it is more likely than not that it was a transfer covered by TUPE.

If the Transfer of Undertakings (Protection of Employment) Regulations 2006 (better known as TUPE) apply to a transfer, those employees assigned to the transferring business will automatically move to the new employer on their existing contractual terms and conditions. Simply put, the new employer would 'step into the shoes' of the old employer and the employees should start working for the new employer as if nothing had changed, apart from the name of their employer.

This is the ideal outcome, although post-transfer difficulties can often arise. For example, the new employer may wish to try and change some of the incoming employees’ terms and conditions as they may not necessarily agree with the terms they were entitled to under their old contracts. However, under Regulation 4(4) of TUPE any changes are automatically void if the sole or principal reason for them is the transfer.

The only circumstances under which an employer may wish to try and introduce changes are:

{C}· If they were unconnected to the transfer; or

{C}· If they were necessary for an economic, technical or organisational (ETO) reason, subject to employee agreement or the terms of the contract permitting the change.

Some employers may try and justify making changes by arguing that they are needed in order to harmonise the transferring employee’s old terms with the new employer’s standard terms. 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 there are concerns about the fairness and validity of any changes introduced by the employer following a transfer, a formal grievance can be raised with the employer. Following that, the main option to pursue this would be by resigning and making a claim for constructive dismissal in the employment tribunal.

Does this answer your query?

Customer: replied 6 months ago.
Thank you. I have new data
Customer: replied 6 months ago.
The answer from HR was " The sale was a share sale and as such we haven't been TUPE'd across to Heritage.
Customer: replied 6 months ago.
She is believing that the plan will take action after the new
Customer: replied 6 months ago.
Customer: replied 6 months ago.
The only people who are on Heritage contracts in old Blade sites are either new starters or those who moved from another Heritage site.
Customer: replied 6 months ago.
Do you think I can do something about being a share sale?

If this was not TUPE then it would just be contractual change. There are occasions when an employer may try and make changes to an employee’s contract of employment. If they wish to do so, there are a few ways, in which they can do it:

{C}· Receive the employee’s consent to the changes.

{C}· Give the employee the required notice to terminate their current contract and re-engage them under a new contract containing the changes.

{C}· Simply force the changes through with no notice or consultation.

The following options are available to employees to challenge these actions:

1. If the employer forces the changes through, the employee can start working on the new terms, then write to the employer making it clear that this is done ‘under protest’. This means that they do not agree with the changes but feel forced to do it as they have no other option. In the meantime, they should try and resolve the issue by raising a formal grievance with the employer. This is only a short-term solution though as the longer someone works under the terms, even under protest, the more likely it is that they will eventually be deemed to have accepted them.

2. If the employer gives notice to terminate the current contract and re-engages the employee under a one, it could potentially amount to unfair dismissal. However, the employer can try and justify their actions if they had a sound business reason for doing so, usually from an urgent financial perspective. If no such reason exists, it is possible to make a claim for unfair dismissal in the employment tribunal, subject to having at least 2 years’ continuous service with that employer. This would be on the grounds that there has technically been a dismissal because the original contract was terminated by the employer.

3. If the changes fundamentally impact the contract, for example changes to pay, duties, place of work, etc., it is also possible to resign and claim constructive dismissal. The employee must accept the changes and immediately resign in response to them. A claim is again dependent on the employee having at least 2 years' continuous service with the employer.

Does this clarify things a bit more for you?

Customer: replied 6 months ago.
Thank you. I'm still not sure as the commission pay plan is something that since the first contract they say that "any changes or amendments to your salary will be confirmed in writing within one month of them occurring" altought I didn't receive anything in writing when the basic wage changed. That happened in March 2019, the plan was written in December 2018
Customer: replied 6 months ago.
The comission plan stated new starter salary 16k rising to 18k upon successful of both probationary period and brand sales accreditation which I have since April 2017. My manager on the time told me that was due to good performance.

Thanks, ***** ***** am not sure I quite follow the above in terms of your rights to challenge the changes?

Customer: replied 6 months ago.
Thank you Ben. I'm just trying to understand if I can ask them to not reduce my basic wage, once they agreed to raise it before. Otherwise I just need to conform and understand the change in the basic pay.

Just because something has been changed before does not mean it cannot be changed again, but if they do try and do so, then the factors and options mentioned in my last reply would apply

Customer: replied 6 months ago.
Thank you for your help. Great service.

All the best

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