Changes to job description and contract after TUPE question.

[ULA]

Was the additional 2 months notice pay as part of any pre TUPE redundancy policy contractual?

Contractually binding policies transfer across and those where it can be shown custom and practice applies i.e. if they are consistently applied and relied on.

However non contractual policies do not automatically transfer across.

[UKTECH]

Hi,

How would I know if the policy is contractual or not? I have sent you the policy. Thanks

[ULA]

Was your original contract of employment directly with the primary school, i.e. the one you TUPE'd across on. If so under Scope of the Policy 3.2, the policy does not apply to "those employed directly by a Schools".

If you are not excluded under the clause above, then the next issue is Appendix 2 where is states the enhanced 2 months MSR notice is only ".... applicable in situations where someone is given notice of redundancy in accordance with the Managing Staff Reductions Policy. Notice periods for all other purposes remain as stated in contracts of employment." Therefore if you are not being made redundant under the terms of the policy all you will be entitled to is contractual notice.

The above points are just my interpretations of the document you have PM's me.

[UKTECH]

Thakyou for your reply, I wasnt employed directly by the school. I guess the next issue is like you stated im been made redundant under a new managing staff reduction policy. Couldn't I claim as the old policy offers none discretionary enchanced terms this should also carry over?

[ULA]

Nothing stops you from trying to claim that the policy applies to your situation, thereby giving you the enhanced benefits including that set out in clause 11.1.

However the criteria for a policy to transfer under TUPE is, I believe, as I have set put in my post # 31 and the MAT may try to argue that these do not apply in respect of the policy.

[UKTECH]

Would the fact they have lost my original job description and are using a fundamentally wrong description that I have never seen or acknowledged stand up in a tribunal?

[ULA]

The onus is on the employer to show that the role you are doing and the duties you are actually performing on a day-to-day basis are no longer required by reason of redundancy.

[UKTECH]

How would a judge see this as they are using duties and roles from wrong job description to justify the redundancy? Some roles and duties of the job description have never existed or been carried out which is then been used to justify my redundancy.

[UKTECH]

If my employer cant show my duties\role have reduced then its a unfair dismissal claim?

Also if my employer have outsourced my duties\role and then used this as reason to make me redundant without considering TUPE this is also unfair dismissal? This would be role erosion.

[ULA]

If your employer cannot demonstrate that your role has genuinely diminished or is no longer required, then you may have grounds for an unfair dismissal claim.

If your role is a service and is being transferred to another employer, then TUPE may apply. However redundancy in this situation may be lawful if:

1. The new employer genuinely doesn’t need your role post-transfer
2. There isa restructuring that creates surplus roles.
3. The dismissal is based on a valid economic, technical or organisational reason and follows a fair consultation process.

[UKTECH]

If I am made redundant would I be entitled to accrued holiday pay im term time only plus 15 days. If I worked full time I would be entitled to 40days paid leave. Our year runs from April to April.

Also because im not full time my annual pay is divided by 12, what about money owed which has been built up? For instance I work 37 hours a week but my monthly pay doesnt reflect this.

[UKTECH]

If im been made redundant based on a incorrect job description I have never seen, acknowledged or agreed to would this be seen as a unfair process? While at the same time rhey have lost my original job description on which i agreed with and was appointed on.

[ULA]

Response to Post #41

You would be entitled to accrued but untaken holiday pay up to your termination date based on your pro-rata entitlement if you are part-time.

It will depend on what your contract says about payment of overtime as to whether additional hours worked are paid and if so at what rate of pay.

[ULA]

Response #42

It could undermine the redundancy process however not necessarily.

I presume you are the only person in the role?

Can your employer clearly demonstrate that the duties you are currently undertaking (irrespective of the job description) are being transferred to the MSP.

[UKTECH]

Im the only one in my role. They are claiming other existing staff will carry out my role. Isn't this role erosion?