TUPE Environment??

[MrGashead]

Hi,

can somebody explain the term TUPE to me?

I'm specifically interested in if the phrase ‘ Treated as a TUPE environment ‘ has any legal standing.

it relates to an ongoing employment tribunal where we were promised that our terms and conditions would not change even though our previous company went bust.

we were told that our transfer would be treated as a TUPE environment. But the new employer has slashed our holiday entitlement from 28 to 19.6 with the only reason given is that the new company doesn’t understand how the previous company worked out our holiday entitlement to be 28 days per year.

Please see link link for further info on the transfer.

https://www.personneltoday.com/hr/pe...-impact-award/

[R0b]

Hello

I don't claim to be an expert but I'll tag the resident expert Ula on this one.

'Treated as a TUPE environment' is not something I believe to be set out in the TUPE regulations so it's probably an expression to say that your employer cannot reduce any benefits or perks as a result of a transfer under TUPE regulations. In other words, you have the right to receive the same benefits as given by your previous employer.

Has your new employer explained why they are slashing it to 19.6 (explaining that they don't know how they have arrived at that is not in my view a good enough excuse)? I believe that for employees (workers too I believe) there is a statutory minimum, being it's 5.6 weeks which is equivalent to 28 days for someone working full time 5 days per week - those who are part-time will of course have their holidays pro-rated.

Are you considered to be an employee, worker, contractor or something else?

On the face of it, your new employer appears to be in breach but I'll let Ula fill in any gaps and/or any exceptions to the above.

[ULA]

I have not seen the specific term "treated as a TUPE environment" in the legislation but I would suggest that it was the terminology used to confirm that the situation of you transferring to a new company when your old company went "bust" would be treated under TUPE legislation.

Employees and most workers who work a 5-day week must receive at least 28 days’ paid annual leave a year. This is the equivalent of 5.6 weeks of holiday and part-time staff will be on a pro-rata basis. In regard to bank holidays they do not have to be given as paid leave and an employer can choose to include bank holidays as part of a worker’s statutory annual leave.

[MrGashead]

Hi both

thank you very much for your responses

i am a employee.

i work on a shift pattern of 4 on 4 12 hour shift off but this is not stated on my contract.

i am aware that my entitlement (lawfully) is 19.6 but a key part of me accepting the job was the 28 day holiday.

my tribunal date is 12/07/2019 so I’m just intrigued as to what other opinions are.

[ULA]

Your contract with your old company did that confirm that your full annual holiday entitlement was 28 days per annum for the shift pattern that you were working of 4 x 12 hours the 4 off?

How long had you worked with the old company and each year you worked there had you taken 28 days holiday?

[MrGashead]

Yes the old contract did confirm 28 days holiday

i worked for them for 1 year and had 28 days holiday.

i have since received an email from their legal department stating that if I withdraw my tribunal case and my data subject access request then they will not charge me with any fees relating to this case.

Im intrigued why they would want me to withdraw my dara subject access request.

[ULA]

If the old contract confirmed you full entitlement based on your shift pattern was 28 days then that is good.

In regard to TUPE this protects you at the point of transfer, and you wouldn't anticipate immediate changes to your terms and conditions. A variation of an employment contract is void if the principal reason for the variation is either the transfer itself or a reason connected with the transfer that is not an economic, technical or organisational reason (ETO reason) entailing changes in the workforce.

Both parties may, however, agree a variation if the sole or principal reason for the variation is either a reason connected with the transfer that is an ETO reason entailing changes in the workforce, or is a reason unconnected with the transfer.


In regard to the email you have received from the legal department, If you lose an employment tribunal claim, there's a small chance you may have to pay your employer's costs of going to court. However, it’s unlikely you'll have to pay costs if you've properly followed the processes for making a claim. A judge will be more likely to order either you or your employer to pay costs if they think you have lied or misled the tribunal or that you haven't cooperated at every stage.

So to avoid having to pay costs, it's important to prepare your claim carefully.