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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 49836
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I am about to lease a garden centre that is currently

Customer Question

I am about to lease a garden centre that is currently trading. Do I have to take on all existing staff on TUPE? We will also be opening a tourist attraction on site and want staff to be flexible on working between the garden centre and attraction, if staff agreeable to this can this be written into their contract?
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

Expert:  Ben Jones replied 1 year ago.

If staff are not agreeable to this would you recruit additional workers?

Customer: replied 1 year ago.
I'd have to if they dont agree but then I'd be overstaffed
Customer: replied 1 year ago.
Also my understanding is I cant make any changes to their original contract until 1 year has passed so how would I implement the change in writing if they agree verbally?
Expert:  Ben Jones replied 1 year ago.

Hi sorry I was travelling earlier. Do you know how long the staff have worked there for?

Customer: replied 1 year ago.
Most for over 5 years
Expert:  Ben Jones replied 1 year ago.

Thank you. If you are taking over the lease of premises and with it also taking on the existing business, you are indeed likely to have to take on its existing employees under TUPE.

If TUPE applies to a transfer, those employees assigned to the transferring business will move to the new employer on their existing terms and conditions. Simply put, the new employer will 'step into the shoes' of their old employer and the employees should continue working for the new employer as if nothing had changed, apart from the name of their employer.

The above is the ideal outcome, although post-transfer difficulties may often arise. For example, 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.

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. So it is incorrect t say that you can make changes after 1 year.

I suggest you consult with the employees and state that they would be required to do these other duties and ask them to volunteer for these changes. If they do you can issue a contract amendment to introduce the changes. If they do not then forcing the changes through can be risky as it can amount to a breach of contract and breach of TUPE and they can potentially resign and claim constructive dismissal. However, in the consultation tell them that it is in the best interest of all to agree to this as otherwise it may amount to redundancies in the future.

I hope this has answered your query. I would be grateful if you could please take a second to leave a positive rating by selecting 3, 4 or 5 stars - this is an important part of our process and recognises the time I have spent assisting you. If you still need me to clarify anything else, please get back to me on here and I will assist further as best as I can. Thank you

Customer: replied 1 year ago.
The legislation changed on Tupe in 2014 allowing contractual changes 1 year after transfer. This is all stated on the government website. Were you not aware of this? Also it states no changes can be made on their existing contracts so I cant see how I can implement the required change in writing. That really was my original question.
Customer: replied 1 year ago.
An ETO may work as the garden centre has been underperforming and the attraction addition will boost the business, therefore being an economic reason for change. Will that work?
Expert:  Ben Jones replied 1 year ago.

Please refer me to the government site that states this

Customer: replied 1 year ago.
Expert:  Ben Jones replied 1 year ago.

Yes as I thought this is only in relation to collective agreements, not just any of the contracts or terms. Collective agreements are formal agreements negotiated between unions and employers and are in addition to contracts of employment. Is that the case here?

Expert:  Ben Jones replied 1 year ago.

So are the terms you are trying to change in place through a collective agreement?

Expert:  Ben Jones replied 1 year ago.

Do you need any further assistance?