Ts & Cs advice with TUPE

[dmdrabble]

Hello,

Me and around 20 colleagues are about to TUPE to a new company in 3 weeks. We have reps appointed to deal with both employers and recently had 1:1 interviews to discuss our individual terms. We are all paid bonus payments of £3000 paid every 6 months for agreeing to do 6 months notice upon leaving and also get £5000/12 months for agreeing to a stipulation of the job, the site and the kind of business we work for. This equates to a generous £11,000 per year.

The new company have agreed to most Ts & Cs, but the 2 payments are a sticking point. They say they will only give us a 10% uplift on our salary. As none of are earning £100k +, then we are out of pocket by about £5000-£6000. We all have different contracts and Ts & Cs. As I started recently, I think I am unique in the fact that I have the bonus payments written into my contract. However, when I had my 1:1, I was told that I would only get the 10% that they were offering. When I challenged them, saying it was in my contract, they said they were working off a spreadsheet sent to them by my current employer. I was surprised by this, so after the 1:1, I sent the HR people on both sides a copy off my contract. They haven't replied or acknowledged what I sent them.

I am happy to sign up to their 10% deal only if they increase my basic. Otherwise, I will be worse off after switching employers. Do the TUPE rules mean I have a case and they have to pay me? Will I have a battle to retain my Ts & Cs? Is this usual practice for a new company to have a spreadsheet with general Ts & Cs, rather than individual's terms?

My colleagues have been told that the payments for them were a non contractual, local agreement. There is documentation outlining what they would be paid if they agree to the new terms, however, none of them insisted they get this written into their contracts. Is their choice either to accept what's being offered or effectively resign by not transferring over? Is there any other action they can take?

[ULA]

TUPE can be quite complex so in answer to your questions as best I can:

Is this usual practice for a new company to have a spreadsheet with general T&Cs, rather than individual's terms? Yes it is usual practice for information on staff T&Cs to be passed from the current to new employer. It may just be an administrative error that your correct contractual details were not passed over.

If the bonus structure that you set out in your first paragraph was detailed in your signed contract of employment, then under TUPE these terms and conditions should transfer across. After the transfer the new employer cannot change an employee's terms and conditions if the reason is the transfer itself, however they can change an employee's terms and conditions if the reason is an "economic, technical or organisational reason"(ETO).

Question for you is, does your current contract have any clause in it that permits variations to the contract to be made? If so then that may not be helpful to you.

Non contractual benefits do not typically transfer across, when you say local agreement what do you mean? Was this negotiated via a union? If not how was it locally agreed and how long ago?

If an employee does not want to transfer, they must object. If they object, their employment with the current employer will terminate on the TUPE transfer date. Importantly, there is no dismissal, which means there is no right to notice pay or any other compensation. That said if an employee is objecting due to an employer's repudiatory breach of contract or because of a substantial change to their working conditions to their material detriment, which are provided for under TUPE, then when an employee objects, they may be able to bring a claim for unfair dismissal against the current employer and/ or the transferee employer.

[dmdrabble]

Thanks for the reply. I have now been told that the payment is not contractual and will not be transferred. Even though in my contract, it outlines which month and how much I will be paid. There is the one line in the contract that says, 'Subject to the terms of the agreement'. I wasn't sent the terms of the agreement and they were not given to me until today. The terms are outlined in an email sent to my colleagues before I started in which it states non contractual. Maybe I should have requested these terms, but I took the HR team at their word when they said the pay package was £XXXXX and consisted of base plus other payments.

I feel disappointed and slightly cheated tbh. But I will move forward and ask the new employer to increase my base, so I am not out of pocket. There is always the option of taking my skills elsewhere.

[ULA]

Thanks for the update. Hope you can get a positive response from the be new employer on an increase in your basic salary.

[dmdrabble]

Sorry to labour this, but I had a query about the actual Ts & Cs that HR are referring to. Should I raise this on another thread?

Although the bonus payments are in my contract, there is a line which says, 'Subject to the terms of the agreement'. I have asked for these terms or a copy of a document which shows these terms several times, but HR haven't given me this. They sent me a copy of an email sent by one of the team leads to her staff when they were getting their bonus. The difference is they don't have it in their contracts, unlike me.

My colleagues who are also pushing don't think a document actually exists. In fact our Hr dept are ignoring me. Do you think I have a case to take this further or would I be wasting my time, money and effort?

[ULA]

Please can you keep everything on one thread.

Sorry I am a bit confused as you say in your post #3 on 14 March

"There is the one line in the contract that says, 'Subject to the terms of the agreement'. I wasn't sent the terms of the agreement and they were not given to me until today."

This seems to suggest you have a copy of the terms of the agreement but your post #5 now seems to say you have not. Please clarify.

[dmdrabble]

Sorry if I haven't been clear.
I joined 7th August and got the contract outlining the 2 payments and the line, 'Subject to terms of the agreement'. I wasn't given anything else at the time, so hadn't seen the terms they are referring to.
I have since been getting the payments.
Due to TUPE 1st April and last week was told my Ts & Cs, (these 2 payments) won't transfer because its non contractual. I queried HR and reminded them it is in my contract. I asked for a copy of the Terms of Agreement.
HR sent me a copy of an email that one of the team leads sent to her staff when they joined the scheme, (and before I started). It said in this email that it was non contractual. Last week was the first time I had seen any email or anything outlining these terms.
I pressed HR for something more substantial than an email, such as a document or something similar. HR have emailed, saying that no document exists. Just this email.
None of my colleagues have anything in their contracts referencing the 2 payment. As a newish starter, I am the only one who has the payments outlined in their contract.
As it stands, I have been told I won't be getting the payments when I move over.

[ULA]

The one thing I have not seen is the clause in your contract that references the bonus, since bonuses are vary rarely put into a contract for a variety of reasons.

I would suggest that you go back to HR and point out that your contract states that the bonus is "'Subject to the terms of the agreement'. This implies there is an agreement is in place over an above the email you have been provided so far. They need to prove that email is the agreement and if so potentially your bonus is subject to those terms.

It is highly unlikely that the new employer will agree to you maintaining the bonus when it is clear it was meant to be a non-contractual agreement. In which case the best you may be able to do is negotiate a one-off payment as a "buy-out" arrangement, or try to agree a salary increase. However that may have all sorts of implications for your peer group and their salary levels.

[dmdrabble]

Thank You. I would be more than happy to send you a screen shot of the section outlining the bonus payments, but didn't want to be cheeky and send it without asking. Its basically agreeing to 6 months notice, applying for and retaining security clearance. Also, I accept that this forum is set up as a free forum and don't want to impinge on your time.

[ULA]

You can PM it to me and then I can respond back on this thread.

[ULA]

Having reviewed what you PM'd me then firstly, what you need to do is formally request is a copy of the DV Market Premium Allowance Scheme Rules and Governance. Make it clear your contract states there is one and it should have been provided by your manager

My second point is that it makes it very clear that this clause 16 of your contract is subject to the terms and conditions in that document so they will be the ones enforceable in reference to that clause.

[dmdrabble]

Thank you. After chasing them, HR have finally admitted that no such document exists. I have an email from them saying this. I intend to ask both sides again if these terms will be transferred next week. I’ll write a grievance email if they say no. Do you think I have a strong case.

[ULA]

My thoughts are that if no document exists then there are no further terms and conditions that specifically relate to the application of this clause 16.

In that case then potentially this clause, being one contained in your contract of employment, needs to move across to your new employer.