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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 61144
Experience:  Qualified Employment Solicitor
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I work at gatwick Airport as a Turn Lead (also called

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I work at gatwick Airport as a Turn Lead (also called despatcher). I started employment with a company called Servisair in 1990. Since then, Servisair folded and the business at Gatwick was taken over by a swedish company called Aviator. I was TUPE'd over to the new employer. In December 2016, Aviator itself went out of business and I was TUPE'd over again to a company called Omniserv, my current employer. Of course, I retained my original contract with Servisair under TUPE regulation. Now, I have reached retirement age but wish to work part-time ad part of phased retirement. My company have agreed to allow me to work part-time, but want me to sign a new contract – their own Omniserv contract- which has many disadvantages, for example the company does not pay for sick leave. I said that I simply want a reduction in my working hours (with the consequential pro-rata reduction in wages and leave entitlement) but I do not want to change other terms and conditions of my employment contract.
Do I have to sign their contract if I want to go for phased retirement. Do I have to be penalised if I want to work part-time?
JA: Have you discussed the TUPE issue with a manager or HR? Or with a lawyer?
Customer: With the HR manager
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Employee full time seeking to effect phased retirement by going part time
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No. Just whether my employer can insist I sign an entirely new and disadvantageous contract or else they deny me my phased retirement

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.

Did you make a formal flexible working request?

Customer: replied 8 days ago.
Yes I did
Customer: replied 8 days ago.
Hello....Hello

Hi sorry I had left the office by the time you replied. Initially there is nothing stopping the employer from trying to offer you a new contract in order to implement the changes you have requested. However, if you have gone through a formal flexible working request, as defined in law (https://www.gov.uk/flexible-working/applying-for-flexible-working) then if the employer is going to reject it if you do not accept their new terms, you can potentially challenge it.

 

Once an employer receives a formal request they must deal with it in a reasonable manner, ideally meeting with the employee to discuss it and, if rejected, communicate their decision within 3 months of the date the initial request was submitted. When rejecting the request, the employer is only able to do so by relying on any of the following grounds:

{C}· Planned structural changes

{C}· The burden of additional costs

{C}· A detrimental impact on quality

{C}· The inability to recruit additional staff

{C}· A detrimental impact on performance

{C}· The inability to reorganise work among existing staff

{C}· A detrimental effect on ability to meet customer demand

{C}· Lack of work during the periods the employee proposes to work

 

Ideally, the employer should also try and explain their decision in writing, such as providing information on why they believe the selected reason for rejection is relevant and they have relied on it.

 

So if you reject their terms and they then reject the flexi working request, they have to follow the above requirements to be able to do it legally.

 

An appeal can be submitted once the decision is communicated. If the appeal is rejected then the only option left is to make a claim in the employment tribunal. A claim can only be made on one or more of the following grounds:

{C}· The employer failed to hold a meeting, notify their decision within 3 months or offer a right of appeal

{C}· The reason for refusal was not for one of the allowed reasons

{C}· The rejection was based on incorrect facts

 

The claim should be presented to the tribunal within 3 months of either the procedural breach or of the date on which the employee is notified of the appeal decision.

 

Does this answer your query?

Customer: replied 7 days ago.
Hello. The fact is that they have offered me part-time. The problem is that it comes with strings attached, namely they want me to forfeit my original contract (TUPE'd over from previous employer) and sign a whole new contract which is no good comparatively. Surely, only the contracted hours should change in my contract, not every other term and condition. Would a court of law agree with me or can my employer hold me to ransom: If you want part-time, then you take less hourly wage rate, take less leave (I am not talking about the pro-rata reduction), don't get sick pay if you are sick. This is what is at stake. please advise

I explained all of that above – if you reject the job with the strings that are attached and then they reject the whole application, they must be able to justify that it was for at least one of the reasons listed above, If they cannot do so, that is when you can challenge them. Does this clarify things a bit more for you?

Customer: replied 7 days ago.
Thank you. Do you advise I present my case to ACAS.

ACAS are there to try out early conciliation between you and the employer to try and resolve this. You have nothing to lose by at least trying

My response to your query should be visible on this page. Could you please let me know if it has answered your original question or whether you need me to clarify anything else in relation to it? If your query has been answered I would be grateful if you could please take a second to confirm this by replying on here. Thank you

Ben Jones and other Employment Law Specialists are ready to help you
Customer: replied 6 days ago.
Question answered thank you very much

All the best