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13th March 2017, 08:27:AM #1
Employer to TUPE my terms - urgent advice required please!
I am new here, but would be very grateful for any advice anyone can offer me.
I have worked in my current role for 10 years. 3 under a contractor role and for 7 as a permanent employee.
I have benefits such as company cat with private use, healthcare, childcare vouchers, Pension and Shares
After many internal changes to the wider team, I have recently been made aware that my terms will be TUPE to an outsourcing company we use.
I have a few issues I would like advice on please.
- I was told this news in a meeting with 2 managers in a public place. It was a pre organised meeting and I had suspicions the move was happening, but genuinely did not expect to be told in those circumstances. There was nobody from HR present, and no Union Rep (please note I an not in a union). Should I be challenging the way this news was given to me? It doesn't sit right with me
- I have been told that my terms will stay the same for 2 years. However after carrying out research my understanding is under TUPE my terms should not have a time limit on them. My understanding is that the new employer cannot change my terms due to the transfer, and can only change my terms if the reason is Economic, Technical or Organisational - basically to prevent redundancies etc. So am I right to challenge being told the terms will change in 2 years? Is this illegal to tell me they will change in 2 years? Am I right in thinking that if they try to force me to sign something to that effect that I can refuse, resign and sue them for constructive dismissal. If so am I likely to win or is this a huge risk?
- The new employer has a different car policy and so use a different leasing company. I currently am under a year into a 3 year car plan with a car I chose. The new employer does not offer a choice of car and has a standard car for all employees of this level. They also have Telematics in their vehicles ( I am not a speeder and have no points but the idea makes me question the trust. Yes I know why companies use them but still). I would like to keep my existing car until the end of the term. Am I allowed to do this under TUPE, or do I have to go with the new employers car. Could I request the same spec of car as my existing car?
- Is it worth me asking if voluntary redundancy is an option? Can this happen if the job is available but under TUPE? The payout wouldn't be huge but would allow me several months to find new employment. I have already been looking at options.
Thanks in advance to anyone who can help!
13th March 2017, 14:45:PM #2
Re: Employer to TUPE my terms - urgent advice required please!
Hi @UnderCover. TUPE isquite a complex area however I will try and provide answers to your questions.
1.The way in which you were told is notnecessarily ideal however what matters now is that the process is followed andyou and your colleagues are provided the necessary information which is thatthe incoming and outgoing employers must inform everyone affected by thetransfer about the details of the transfer including why the transfer is takingplace. The information must be given in writing and include:
a) the fact that the transfer is going to takeplace, approximately when and why any social, legal or economic implicationsfor the affected employees for example a change in location or risk ofredundancies
b) any measures that the outgoing and incomingemployers expect to take in respect of their own employees (even if this isnothing)
c) the number of agency workers employed, thedepartments they are working in and the type of work they are doing if agency workersare used
d) the outgoing employer must provide informationabout any measures which the incoming employer is considering taking in respectof affected employees.
In addition your employer must consult with recognised tradeunions or elected representatives about measures which they are consideringtaking for their staff in respect of the transfer.
2.Under TUPE regulations you will maintain theterms and conditions you currently have unless the terms and conditions of thenew employer are more favourable, in which case you can elect to be employedunder their terms and conditions.
Following a transfer, employersoften find they have staff with different terms and conditions workingalongside each other and wish to change/harmonise terms and conditions.However, TUPE protects against this for an indefinite period if the sole orprincipal reason for the change is the transfer. Contracts can be renegotiatedafter one year provided that, overall the contract is no less favourable to theperson who transferred under TUPE other than the fact that it’s less likelythat a variation of contract will be seen as due to the transfer if it happensafter some time has passed.
There are still circumstances inwhich changes are valid: for example, if there is a 'economic, technical ororganisational (ETO) reason entailing changes in the workforce', and employerand employee have agreed the change/s.
If youdecide to leave and claim constructive dismissal due to changes being made toyour contractthey will need to be significant and fundamental. In a tribunal, the burden ofproof will be with you to show that youwere constructively dismissed and if you were to consider this course of action it is always best to obtain early professional advice, asit is a pretty finalstepif you resign in the belief that you have a good claim- when you don’t.
3.In regards to your car it is not straight-forwardand without full details of the policy I cannot answer with any degree ofknowledge. It depends on the arrangement that your current employer has inplace e.g. financing of the cars in their fleet and how these are being handledas part of the transfer.
However, all the company car/allowanceschemes I have ever seen allow the employer to revise the terms of the policyas they see fit. This means that there is no protection of the existing termson TUPE - if your current employer had the option to change the terms beforethe transfer, then your new employer would have the option to change themfollowing the transfer.
I suggest that as part of the consultationgoing forward you ask the union rep or elected representative to see if theycan find out what provision is being made for company cars on transfer.
Concerning redundancy then unless as part of theconsultation process it becomes apparent that the transfer is going to resultin potential redundancies then you cannot be made redundant just because you donot want to transfer to the new employer. If you do not wish to transfer thenit would be a case of you resigning from your current position with your currentemployer.
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