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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
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
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