new contract issue

[zima101]

Hi, the company I have worked for 9 years went into administration and was bought by another. Two months ago they presented me a new contract which I am unhappy with the terms and salary. So I am holding out signing with the hope that new terms will be offered. In the mean time I have noticed they have started paying me the new salary (higher by 80/month). If I do not return the money - does this constitute acceptance of new contract? your advice please Zima

[Eloise01]

Re: new contract issue

You have already accepted the new contract! Signing it is irrelevant - you carried on working, and in law that is acceptance. If you disagreed with the changes it was incumbant on you to refuse them in writing. You did not do so. What you thought was "holding out" was actually agreeing! For future reference, employment "contracts" do not need to be signed to be valid.

It must be an absolute first though - never come across anyone objecting to being paid more money before!

[FlamingParrot]

Re: new contract issue

Eloise01 is the employment specialist around here so she may be able to clarify things further. I am in a similar situation in that I was working fora company that was liquidated but I still work for the same people who are using a different company This seems very common nowadays. Apparently there would have been a good argument for a TUPE transfer (Transfer of Undertaking Protection of Employment). With a TUPE transfer you keep your same terms and conditions of employment and, more importantly, also your length of service for the purposes of redundancy and protection against unfair dismissal.

You say you are unhappy with the new terms and salary but then you say they are paying you en extra £80/month? If you haven't signed a contract, just getting paid doesn't imply acceptance of something you haven't signed. If you are neither an employee of the old company because it was liquidated nor of the new one, how ate you getting paid? Are you invoicing as self-employed?

[Eloise01]

Re: new contract issue

If you haven't signed a contract, just getting paid doesn't imply acceptance of something you haven't signed.

In employment law - yes it does imply acceptance. The "contract" - which actually isn't the contract at all, but that is a whole different story - is formed by the offer and acceptance of employment, and requires neither anything in writing, nor anything signing. This stage of the contract can be difficult to enforce, but the minute you attend work and the employer accepts your presence the contract really kicks in to force. Being paid is actually nothing to do with it - once you start work the employer is obliged to pay as part of the contractual terms.

There is no requirement ever to sign for the "contract" or for the written statement of main particulars (which is what most people think is the contract!).

If your contractual terms are changed there is no requirement to be given or to sign a new contract. If you continue to attend work that is deemed acceptance of the terms. The only exception to this is if, in writing, you refuse the terms and state that you are continuing to work under protest and subject to legal action. At which point you must bring a claim to an employment tribunal, and you must do so without delay. The OP has not done this - therefore they have accepted the new terms.

If you are neither an employee of the old company because it was liquidated nor of the new one, how ate you getting paid? Are you invoicing as self-employed?

TUPE. TUPE generally applies to companies bought out from administration.

[zima101]

Re: new contract issue

Hi Eloise,

Thank you for your advice and apologies for delay in replying, have a couple more questions

1) "TUPE generally applies to companies bought out from administration." - the original company
was purchased from liquidators - does this change things?
2) I am still waiting for terms and targets for OTE (which is part of new contract), they haven't been discussed with me -
could this constitute a reason why my protest letter has been delayed?

and yes I should be pleased with salary increase but the amount of work has also been increased 10 fold

thanks in advance Zima

[Eloise01]

Re: new contract issue

1) Almost certainly not. TUPE applies in 99% of cases except where a transfer is achieved by share acquisition (in which case the employer remains the same even though control changes). But I cannot see it's relevance here anyway.

2) I doubt it. They are almost certainly ignoring it because "protesting", or "holding out by refusing to sign" isn't in the "rule book" - you did not refuse them. It probably wouldn't have made any difference anyway - they could have enforced them and almost certainly would have done so lawfully. I am afraid FlamingParrots assertion that you get to keep your terms and conditions after a TUPE is a bit of a blanket statement. If the employer wanted to change the terms by force, then all they have to do is give you notice and tell you that you accept or you are considered to have resigned. Hence the fact that you must refuse, and you didn't. As I said, in employment law, continuing to work is acceptance, with the rare exception of a specifically worded letter that you are working under protest and subject to a legal claim - which you have not made.

The bottom line is that I would not hold my breath on your winning this one, and I would be careful that you don't end up unemployed here. A tribunal isn't interested in how hard you have to work, or targets - those are matters for the employer and tribunals won't consider them. So if you were to make a claim your complaint would be left as "they gave me a pay increase". Put that way it doesn't sound very convincing, does it?