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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 55169
Experience:  Qualified Solicitor
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Hi my name isXXXXX an I am working as head

Customer Question

Hi my name isXXXXX an I am working as head housekeeper at PREMIER INN HAYMARKET BRISTOl.From 23 Aug 2010 I was working for a contractor agency WGC services and from 1of March we have been TUPE to WITHBREAD in house .After this transfer they start changing everything starting ofcourse with our wages.I was paid till 1 Marh 2013 salaried rate by WGC SERVICES,for 1year and a half .I didnt get paid for 4 weeks because I was waiting to be peid monthly on 25 of the month but didnt happend.Afterwards I found out that I was supposed to be paid hourly /weekly this hapend after 4 weeks.I never been contacted by no one to give any notice about my salary change.Now being paid hourly my salary is not going to be the same because they are paiyng me from 40hours 37.5 so all my salary amount I was getting before is gonna be 100 pounds less because they are cutting from my salary.I am wondering if all of this is legal.Thank you for your help
Submitted: 5 years ago.
Category: Law
Expert:  Ben Jones replied 5 years ago.
Hello, my name is Ben and it is my pleasure to be able to assist with your question today. If TUPE applies to a transfer, then the transferring employees will move to the new employer on the same terms they were employed under just before the transfer. Simply put, the new employer will 'step into the shoes' of their old employer. This means the employees will preserve their continuous service with the employer and can expect to transfer their contractual terms and conditions over.

The new employer may sometimes wish to try and change the transferring employees’ terms and conditions of employment. However, under Regulation 4(4) of TUPE any such changes are void, unless the employer can show they were in no way connected to the transfer or if they were required for an economic, technical or organisational reason (ETO reason).

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 one’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 a change in the workforce so harmonisation is unlikely to 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.

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