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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 50202
Experience:  Qualified Solicitor
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I work for a well known local council now but in 2012 I worked

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I work for a well known local council now but in 2012 I worked for a private recycling firm council decided to take there services back in house / so we toupee over to them / council was in middle of pay protection at the time when we touped over / we where asked rather than be on our old company contract we were asked to jointhe council contract and promised the the condions as any council employee was on as the council carried over our service time from the previous company / we all agreed to to this / but then the council had us put on the bottom pay grade which was way below what the normal council employee was on / wwhen we complained about being at the bottom pay grade for doing the same work we were told it would take 7years to get to the same grade as a council employee /it wasn't our fault that the council decided to toupe us all over in the middle of there pay protection time
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. What would you like to know about this?

Where do we stand regards ***** ***** over in middle of a pay protection / then the council making us promises then seem to have went back on there word making us starting at bottom off the pay scale which is is a couple grand the difference from a council employee


We wanted to knows if council can make us start from the bottom of grade or if we are entitled to to the same as a council employee for the same work

Ben Jones :

OK thank you, ***** ***** it with me. I am in a tribunal today so will prepare my advice during the day and get back to you this afternoon. There is no need to wait and you will receive an email when I have responded. Thank you


Thank you ben

Ben Jones :

Thanks for your patience. The starting point is that when you transferred under TUPE you would have been entitled to retain your existing terms and conditions, which existed before you transferred over to the current employer. So the contract under which you were employed with by the private employer is the one that should have been retained and the terms of which should have transferred over to the Council.

However, the new employer may wish to try and change some of the incoming employees’ terms and conditions. However, under Regulation 4(4) of TUPE any such changes are automatically void, unless the employer can show they were in no way connected to the transfer or if they were necessary for an economic, technical or organisational reason (ETO reason) subject to employee agreement or the terms of the contract permitting the change.

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 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.

You may have agreed to the changes taking place but that would then be subject to the employer actually sticking to what was promised. So if they have deviated from their original promise you can challenge this as a type of misrepresentation.

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.

Hope this clarifies your position? If you could please let me know that would be great, thank you


Thanks Ben your input was very helpful we can take matters further now we knowe what should a happened when we touped over

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