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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 68171
Experience:  Qualified Employment Solicitor
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I was TUPEd into a local authority from NHS in 2013, my job

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Hi, I was TUPEd into a local authority from NHS in 2013, my job description has not changed since appointment in 2009. My role is now completely different in terms of remit, responsibility and with budget responsibility. I admit have 'gone along' with this, as am conscientious and enjoy the challenge, however this is impacting financially as at top of my scale. It's complicated by the TUPE and pay not keeping up with previous NHS pay - still on NHS terms and conditions - and have not been re-evaluated within the local authority. Can I challenge this as being unfair and that I don't feel valued? I now have an opportunity to leave and move back to NHS. However the current situation doesn't seem right to me?
JA: Have you discussed the TUPE issue with a manager or HR? Or with a lawyer?
Customer: Managers and HR are aware of TUPE issue, there is a plan I believe that eventually a few of us in my team will be re-evaluated. I don't know when. Not discussed with a lawyer. Member of UNITE, did approach them in 2016, about the pay not keeping up. Not about the JD issue.
JA: What is your employment status? Are you an employee, freelancer, consultant or contractor? Do you belong to a union?
Customer: Employee. UNITE member
JA: Anything else you want the Lawyer to know before I connect you?
Customer: No

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

Can I just check, how long have you worked for the business all in all?

Customer: replied 7 months ago.
Fine, perhaps we can explore a bit more, if need can speak?
Customer: replied 7 months ago.
Ten years and 5 months, TUPE in 2013 6 1/2 years ago
Customer: replied 7 months ago.
I don't wish to pay £44 at this stage
Customer: replied 7 months ago.
Hello will you be coming back to me?

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.

Many thanks for your patience. If the Transfer of Undertakings (Protection of Employment) Regulations 2006 (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 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 in itself break the connection.

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.

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