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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 69106
Experience:  Qualified Solicitor
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We have recently undergone a transfer under TUPE, however,

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We have recently undergone a transfer under TUPE, however, less than a month after transfer, an agreed transfer of Time Off In Lieu has been changed for the worse. Are the company in breach of any law? thanks for your help
JA: Where are you? It matters because laws vary by location.
Customer: We are in Hertfordshire
JA: What steps have you taken so far?
Customer: None at the moment as we do not know where we stand
JA: Anything else you want the Lawyer to know before I connect you?
Customer: The TUPEdiscussions were conducted with elected representatives of the work force of which I am one. The discussions concluded in late December before the transfer too place on the 1st Jan. The situation is that we were told there would be no change to our time off in lieu conditions, but they were changed today.

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.

Was this a contractual right?

Customer: replied 6 months ago.
originally it was a verbal benifit offered to all employees when the opportunity with work allowed, this has been in place for years & so should come into the custom and practice sphere. However, although it was agreed during TUPE transfer discussions that this would not change, it was discovered yesterday that the new company has a different Time Off In Lieu arrangement. Our local management has now adapted our arrangement so we are worse of that both the original arrangement and what the new company offers.

Thank you. 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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Customer: replied 6 months ago.
That’s great Ben, thank you

All the best