Urgent help SOSR contract termination

[Nero12]

Hi guys. Im in need of some urgent help reference an SOSR employment termination if I dont sign a new contract and face a substantial loss...I get travel time incorporated into my contract BTW.The first I knew about this was a meeting which was construed as a consultation with not much consulting going on where we just discussed my contract and what they want to change in a general way ..nothing really meaningful went on , just going through the motions I suppose for legal reasons The second was a meeting again with no consulting going they just asked would I agree to a pay drop IE Remove the travel time ..to which I said I couldn't afford..so they simply said if you dont then your fired, thats the sum total of negotiating..I have the right to appeal this which they said however I havnt the foggiest idea what to do. I feel they steam rollered this through simply to level everyone's contract with the threat of dismissal. Also I thought my current contract was protected under TUPE although the transfer was 7 years ago ....Plus I just dont understand why they want such a big pay drop. The company isnt in any way going under , in fact they are very solvent Ive offered to change other terms for operational reasons but they just refuse to negotiate compensation for loss of pay....Any Ideas guys ..my nerves are jangled plus I have an autistic son to support financially and this would be a disaster for my family. Thanks in advance ..
PS I forgot to say there were other terms they wanted changing , I did indicate I would be flexible and offered to change other bits and said i would but they just didnt listen..

[ULA]

If your employer is considering a SOSR termination then, they need to be able to show that there are legitimate business reasons for the changes they want to make and they follow a fair procedure. This will need to include some form of consultation process with any affected employees, together with careful consideration as to why an employee is rejecting these changes.

In regard to the fact that you were TUPE'd 7 years ago, yes indefinite protections are in place due to TUPE. If the change to a transferred employee's terms and conditions of employment is because of the transfer, it will be prohibited, even if it occurs some years after the transfer took place. However, it may be less likely that an employee will be able to claim that the change is being made as a result of the transfer the longer the period of time since the transfer.

What has been given to you in writing setting out the new terms and conditions, the business reasons why and notes of the consultation meetings held with you?

[Nero12]

Hi thanks for the reply..So they have followed a consultation of sorts.my first one didn't really have any meaningful value as I missed the presentation due to holidays..we did discuss my contract and what they wanted to push through but nothing was explained as to why , apart from operational reasons ...they simply said do I agree to these changes which I alluded that I would apart from the travel payments. I explained that it would have a real negative impact however I would negotiate...I also asked quite importantly if this had anything to do with financial reasons and they said no...
My next meeting was far more aggressive, they changed the reasons to it now being financial and operational..When I pointed out that the contract is a cost plus contract whereby the company does not loose, I'm assuming that you are aware of cost plus contracts, I got a rambling garbled response about covid and that the company wanted to allocate money differently..in reality they want to level everyones contracts..so mine was earmarked for leveling down and some leveled up..For me personally this means a drop of over 450 per month which puts me in serious financial hardship..I pointed this out however it fell on deaf ears..they then read from a script saying if I don't agree them I'm out of a job in 3 months unless I appeal..
This Has happened to all the guys that were tupe'd over ..they want everyone on the same contract as its easier for them to administer ..I can see the operational reason but not the financial one ..I thought for a financial change they have to demonstrate serious financial difficulties plus would my TUPE rights still apply.....Thanks once again for your help

[Nero12]

Hi all, could I ask if there is a right to work under protest if my company attempts to fire and re hire..
I've been asked to sign a new contract with lesser terms and have had little time to establish the legalities of what they are doing..the threat remains that if I refuse to sign said contract I've effectively lost my job.
however if I claim working under protest do I preserve the right to take legal action and remain in my current position..
Thank you all for your time..

[atticus]

You may find yourself not being rehired.

[ULA]

Nero12 I have merged your two threads together as they are related. It is much easier if you are looking for advice on an issue for which you have a number of questions to keep them on the same thread please. It then means those of us providing advice on one question are not doing so in isolation of the other issues which would be relevant to any answer.

My response to your post #3

Your employer needs to follow a fair process to implement a significant change in your terms and conditions if they do not want to face a claim so, they need to fully consult with you and agree any changes to the terms. I am not passing any opinion on the fairness of the process of consultation, however the company would be able to demonstrate a process if you were to make a claim and it would be for a judge to decide on fairness.

If you do not agree the law does recognise that employers have to adapt to changing market conditions, and that sometimes the contract of employment must be varied to reflect this. If your employer has given reasonable and due consideration to objections and alternative suggestions that you put forward, but deem those suggestions to be unworkable, then they can terminate your original contract however they do have the option to offer a new one in its place on the new terms.

If you do not agree to the changes, then you can raise a grievance about this which would need to be considered in line with the company's grievance procedure.

In respect of your TUPE status if any claim were to be brought by you then you would have to prove that the changes being made to your terms and conditions was directly related to the TUPE transfer and the employer would need to prove this was not the case. Based on any evidence presented it would be down to the tribunal to decide whether TUPE protection could be applied even after the 7 years since this happened.


My response to your post #4

You can work 'under protest' for a while but you cannot do this indefinitely without taking further action. This may mean making a claim to an employment tribunal, or, in some extreme situations, resigning from your job and claiming 'constructive unfair dismissal’ which is not the easiest type of claim to bring.
If you do not want to do either of these things, you may eventually have to accept the changes to your contract, given that there are strict time limits for making a claim to an employment tribunal.

[Nero12]

Hi ULA,
thanks for taking the time to reply youve been a great help. With reference to the TUPE argument which I'm not 100% sure how that works but this is my take on it. So all the guys that were TUPE'D over have indeed had their contracts changed and it was to bring into line all existing company contracts so I'm thinking this has a direct relationship with TUPE. so therefore to try and change contracts it is a result of the TUPE transfer..is this correct. As I said earlier they run a cost plus contract which means that every overhead is paid by the client..The budget also went in on April and has been approved by the client so th0e only reason they want change is to benefit the company finances and not the client..My argument therefore is My Tupe status still exists and there isn't a financial reason to drop my wages as is to benefit themselves for no other reason .further more there are no redundancies as the company isn't insolvent..So my appeal would be along those lines..It has to be in very soon btw...

[Ndurennai]

Nero12 I have merged your two threads together as they are related. It is much easier if you are looking for advice on an issue for which you have a number of questions to keep them on the same thread please. It then means those of us providing advice on one question are not doing so in isolation of the other issues which would be relevant to any answer.

My response to your post #3

Your employer needs to follow a fair process to implement a significant change in your terms and conditions if they do not want to face a claim so, they need to fully consult with you and agree any changes to the terms. I am not passing any opinion on the fairness of the process of consultation, however the company would be able to demonstrate a process if you were to make a claim and it would be for a judge to decide on fairness.

If you do not agree the law does recognise that employers have to adapt to changing market conditions, and that sometimes the contract of employment must be varied to reflect this. If your employer has given reasonable and due consideration to objections and alternative suggestions that you put forward, but deem those suggestions to be unworkable, then they can terminate your original contract however they do have the option to offer a new one in its place on the new terms.

If you do not agree to the changes, then you can raise a grievance about this which would need to be considered in line with the company's grievance procedure.

In respect of your TUPE status if any claim were to be brought by you then you would have to prove that the changes being made to your terms and conditions was directly related to the TUPE transfer and the employer would need to prove this was not the case. Based on any evidence presented it would be down to the tribunal to decide whether TUPE protection could be applied even after the 7 years since this happened.


My response to your post #4

You can work 'under protest' for a while but you cannot do this indefinitely without taking further action. This may mean making a claim to an employment tribunal, or, in some extreme situations, resigning from your job and claiming 'constructive unfair dismissal’ which is not the easiest type of claim to bring.
If you do not want to do either of these things, you may eventually have to accept the changes to your contract, given that there are strict time limits for making a claim to an employment tribunal.

Hi, could you please recommend an employment solicitor that does no win no fee? I have acas certificate and need to complete ET1?

[ULA]

Sorry it was not clear from your posts that you had already completed the Early Conciliation process and that you are now making an ET claim.

The protections you have under TUPE are that your employer can only make changes to your terms and conditions because of the transfer if either:

• they make and improvement to your terms and conditions, for example your employer increases your holiday entitlement; OR
• there is an 'economic, technical or organisational' (ETO) reason involving a change in the workforce, for example your organisation needs restructuring

Harmonisation, as it is known, of terms and conditions to match "non TUPE'd" existing staff can only be done if this improves your terms and conditions. The only situations where your terms and conditions can be changed to something worse than before, is if your employer has a valid ETO reason. ETO reasons include:

• essential cost-saving requirements (economic reasons)
• using new processes or equipment (technical reasons)
• making changes to the structure of an organisation (organisational reasons)

My view is that you will need to set out in your ET1 that you believe the reason for the changes are due to the TUPE transfer and the requirement to harmonise terms with existing staff but this in fact puts you in a worse position, which is not allowed under the protection you have from TUPE regulations. From what you have set out in your posts, I think your employer will try to argue economic reasons for needing to change terms and conditions which in their view is acceptable to do, even with the TUPE protection your contract has.

LegalBeagles does not recommend solicitors but we do have a sister site http://www.justbeagle.com/ which has the ability to search for solicitors who may be able to assist on a no win, no fee basis. Another thought is that via any insurance policies e.g. car or home do you have legal expenses cover? If you do it may be worth contacting them to see if this scenario would be considered under that cover. The would look at the case and then, dependent on what they felt the prospects of success would be, will decide whether or not to take on the case under the policy cover. Also if you are a union member then approach them to ask about representation. My final thought is are other colleagues TUPE'd over facing the same situation also considering making and ET claim?

[Nero12]

Hi ULA,
Thankyou for your response, greatly appreciated. Just to clarify we're still at the consultation process, they claim as part of this process that they have an organisational reason at the first meeting, then changed it to an organisational AND financial reason on the second meeting and want to change my contract to make me very worse offI've said at the second meeting that to make me take such a hit would seriously impact my ability to help my autistic son to live an independent life...I haven't agreed to take this hit so they have threatened to dismiss me and re hire on less favourable terms. This has happened to alot of others who were TUPE'D over most have signed the new agreement in fear of losing their jobs.
My argument had always been the TUPE element but havnt used it yet as im unsure about the law on this. So am I right in thinking that the transfer still applies and that my TUPE rights are still intact and by default they cannot use dismissal and re engagement...
thanks once again for your kind insight ..

[dslippy]

I give up . . SOSR?

[ULA]

dslippy SOSR is "some other substantial reason" this is a catch-all category designed to allow employers to terminate an employment contract when no other potentially fair reasons apply. The SOSR depends on the facts and circumstances of each case.

Nero12 thank you for confirming the exact stage you are at with this issue.
As per my post #9 TUPE gives you protection, except if your employer can argue the changes to your terms are due to an EOT reason, which is considered a fair reason to make the changes even with TUPE protection.

You can follow the internal procedure and appeal on the basis that you believe your contract terms are protected under TUPE, however if your employer believes they have a solid EOT reason to make the changes, then they may decide to reject your appeal.

If that happens you will need to then make a decision based on the possible options you have:

1. Accept the new terms and remain employed.

2. Your employer has indicated they will dismiss under SOSR and then you would need to consider if you want make a claim for unfair dismissal. However you should be made aware this is a long process, due to Tribunal backlog, and if you are in a litigant in person is a process that can be very stressful.

[Nero12]

Hi ULA,
thank you for taking the time to reply. Seems my company has looked at all the legal angles. They certainly have done alot of homework on this and have seriously gone out of thier way to do so. by the looks of things I may have to accept the changes then move on when I'm ready.
Could I ask one more question...If I have 14 years in is there a statutory minimum amount of notice I have to give. Others have been told 12 weeks however that's not mentioned in my contract of employment..

[ULA]

Under the Employment Rights Act (1996), you have a statutory obligation to give one week's notice. However, please check your contract carefully as there may be a different notice period stated and if that is more than a week then this will be the notice that you have to give.