tupe transfer

[des8]

Re: tupe transfer

.....and with the fees of going to a tribunal so high, and no guarantee of being awarded costs even if winning is he likely to risk it?

[jon1965]

Re: tupe transfer

From memory it is perfectly ok to cut hours if the business needs dictate. This is most important in a small business . I think ACAS are worth a call, or do the brewery have an advice line. If you can show the business needs to save the costs. Also I believe that there are large costs involved in an ET . I suspect she is a bullshitter

[charitynjw]

Re: tupe transfer

From memory it is perfectly ok to cut hours if the business needs dictate.

Can you substantiate this?

AFAIK the employment contract cannot be unilaterally altered; however, it can be varied if the employee agrees to this.

This is by way of an ETO, but it must be shown that there is a sound economic necessity for it.
http://www.legislation.gov.uk/uksi/2...ulation/4/made

The alternative is redundancy, also via ETO.
http://www.legislation.gov.uk/uksi/2...ulation/7/made

[jon1965]

Re: tupe transfer

Charity, I think you answered the question for me
(4) Subject to regulation 9, in respect of a contract of employment that is, or will be, transferred by paragraph (1), any purported variation of the contract shall be void if the sole or principal reason for the variation is—

(a)

the transfer itself; or

(b)

a reason connected with the transfer that is NOT an economic, technical or organisational reason entailing changes in the workforce.




http://www.berr.gov.uk/files/file20761.pdf

Page 15

This says that changes can be made for sound economic reasons. As the contract of employment does allow for variation in hours I can not see an issue although as I said I would suggest further advice

[charitynjw]

Re: tupe transfer

(5) Paragraph (4) shall not prevent the employer and his employee, whose contract of employment is, or will be, transferred by paragraph (1), from agreeing a variation of that contract if the sole or principal reason for the variation is—

(a)

a reason connected with the transfer that is an economic, technical or organisational reason entailing changes in the workforce; or

(b)

a reason unconnected with the transfer.


Any variation to the contract has to be agreed with the employee

[Inca]

Re: tupe transfer

to them with amendments which was to add a couple of words to every one of them ie " no drinking either before or during shift " her amendment was to add "on the premises"

When I ran a bar the rules were strict...NO ALCOHOL BEFORE OR DURING SHIFTS..I would have shoved the 'on the premises' right back at her. You're the boss,not her and if you say No...it's No (unless someone can prove me wrong??)

[jon1965]

Re: tupe transfer

It seems to me that is all irrelevant anyway as there is a clause in the contract to vary the hours. I think it would cause more problems to vary the duties or even the hours worked .

Of course there is always the possibility of redundancy which would cost between 3 and 7 1/2 weeks wages depending on his age. I believe if you want to play hard ball you could vary the contract substantially and say its up to you, vary or be made redundant...but again take some advice from ACAS or someone qualified

[teaboy2]

Re: tupe transfer

As there is a clause in his contract that allows for variation of hours then use said clause by making it clear to him in writing, that if he does not accept the variation in his hours which will only be until business picks up again, then you may have to lay him off or put him on short time, as stated in his contract i.e the clause. Or worse case scenario look at making redundancies. Therefore making it clear to him that its his choice and that what you are offering him in hours is the better or the 3 choices for both parties. Also in such letter make clear what the reasons for the variation in hours is needed for.

As for his other half, Call her bluff -After all, you have the clause in the contract to back you up along with sound economic reasons for the variation. So basically if he doesn't agree then you have the right to consider Short Time or redundancy options and i doubt his other half will have any success in arguing against a clause in the very same employment contract that she was threatening to take you to court over, if changed as permitted by said clause. Plus if it went to tribunal (which i very much doubt it will) then when faced with the facts in tribunal the tribunal would likely see their unwillingness to cooperate, in light of the circumstances, as unreasonable.

If i was him and was faced with those 3 options and knowing what the job market is currently like, i know which option i would choose, and it wouldn't be short time or redundancy.

[jaxkevla]

Re: tupe transfer

I have done a letter for him for when he turns up tonight stating that we are changing his shift pattern from Sunday and if he fails to fulfill such hrs he will be in breach of his contract as that says his hrs but not the days, also let him know that the rules we issued are not changes/amendments to his contract but simple housekeeping rules we as a business adhere to and that according to his contract we do req. a month for 4 or less days and 2 months notice for a week or more so he needs to sign and return the copy he received as it only states he has read and understood them. Hopefully this will make her realise that we aren't going to roll over and let her dictate how we run our own business, will let you all know what happens although i do expect a reply from her on Friday/Sunday to let us know she wants to add words for no other reason than she gets off on being a control freak!!!!!!!

[jaxkevla]

Re: tupe transfer

well as expected i got a letter from his oh although he has worked 3 shifts since i gave him the letter we received a reply through the letter box overnight, [ he obviously is not brave enough to hand it to me face to face never know i might say boo]. I could swear now but won't, she has put that although we aren't allowed to change his days as it is implied over the years what shifts a person works! why do i feel shes just trying to get one over on me, she has put that although next time i want to change shifts i need to have a consultation with him this time they are willing to forego such consultation and change shifts as requested!! and she wants a copy of the contract i am quoting from so she can go over it, on checking the contract for more information as to how we proceed from here on in he hasn't signed the contract it does have his name at the top
and the previous employers mane on , does this mean the contract isn't worth the paper its written on, and also if she says it doesn't count without his signature on does that mean he isn't under contract, which then begs the question if she discounts it because of there being no signature then she can't have it both ways either he adheres to the terms or he can be finished without notice, am i making this too simple by saying she can't have it both ways either it stands and so the changes can be brought in or hes done please someone advise me as im going mad with it all.

[des8]

Re: tupe transfer

As a general rule one can argue that an unsigned contract of employment is enforceable, depending on the behaviour of both parties.It will depend on how long the contract has been in existence, if salary has been paid, if the terms have been disputed in the past, if those terms are reasonable etc.
In Farnsworth &Another v Lacy & ors(2012) EWHC 2830 the High court found that an employer can rely on an unsigned contract. The situation there was different but IMO the basic finding should see off the employee's OH

[teaboy2]

Re: tupe transfer

Doesn't matter if its signed or not. Proof he was employed by you and the previous pub owner is in company accounts regarding wages etc which are he and his OH can not deny.

As for previous employers name on the contract, that doesn't matter either as TUPE means the contract is automatically transferred to the new employer i.e. YOU!

As for what she said about implied shifts. Well that rubbish as the hours were in his contract and shift patterns can be changed to reflect business needs at any time. It is the hours that are a core term, and even then you have a clause in the contract that can be enacted at ANY TIME during his employment, be it within year 1 of in his 25th year of employment - It can also be enacted numerous times as and when the business needs.

What she is referring to when she says "implied" is custom and practice in the workplace - If she was really a solicitor she would have referred to it as custom and practice not implied as there is nothing implied in a written contract, its either there or it isn't. But in any case this does not apply to shift patterns which are actually decided by the business and can be changed at any time (Rota for example) to suite the business economic/financial needs. Factory's change there shift patterns when they loose contracts or take on new contracts, to suite the economic and financial impact such loss of contract of gain of a new contract can bring.

In your case, you have a downturn in business i.e. sales and can not economically afford to have him work his usual shifts/hours therefore you can change his shifts and the clause in the contract allows you to change his hours too if need be.

Also as she is his other Half, then you do not need to communicate with her as she is not an employee of your company (therefore has no rights in regards to her husbands employment or matters involving his employment) and she is not his FORMALLY APPOINTED legal representative / Solicitor. Therefore you should inform her that from now on you will communicate with your employee only regarding his employment, this means all letters from him must be signed and written by him, and she is not permitted to attend any meetings you have with him (though he may select another employee to attend with him or a trade union member) or come to his place of employment to attempt to discuss his employment in person with you or any other member of staff, she is also not to discuss this or attempt to discuss this with yourself or other members of staff outside the workplace or in public.

You also need to inform all your staff that you have a new confidentiality policy (which you will need to add to the company hand book - Note this is not terms of a contract but company policy) advising all staff members that they are not to discuss employment matters with third parties unless for legal advise or with trade union representatives. They are also not to discuss with third parties business matters pertaining to the business, or details about other members of staff and they employment (doing so would put them in breach of the data protection act 1998) - Provide each member of staff this in writing and that they sign and return it to u, advising them in writing that if they do not agree to this policy then they must state so to you in writing withing 14 days.

If you haven't got a company hand book then i suggest you draw one up quickly including the confidentiality agreement. Also to be on the safe side, make clear that breach of company policy contained in the handbook will be deemed as gross misconduct. Make sure the policies are fair and reasonable and do not affect there statutory rights.

P.s. - It would be useful if you could post a copy of the contact up on here, minus the employee personal details and your company details.

[charitynjw]

Re: tupe transfer

You could even fall foul of the Data Protection Act yourself in dealing with his OH.

Have they given you a signed authorization allowing her to approach you on his behalf?

[teaboy2]

Re: tupe transfer

You could even fall foul of the Data Protection Act yourself in dealing with his OH.

Have they given you a signed authorization allowing her to approach you on his behalf?

Exactly, hence my suggestion for the confidentiality policy and to inform her they will not be comminicating with her about her other halfs employment matters. So far, as long as he was aware what his other half was doing, which they'll have difficulty denying, given she had a meeting with the OP at place of work. Then proving the OP breached data protection would be difficult to be honest and would likely come to nothing. But its best to now play it by the book and not risk giving her opportunity

By the way, she has no right to request a copy of his contract only he has that right - Forgot to mention that earlier i think.

[jaxkevla]

Re: tupe transfer

We have decided after more deliberation that we can no longer afford to pay him his 19.5 hrs . On the nights he works we actually have to subsidize his wages from our own account as we don't take enough money, (at the moment on the nights in question he earns more than we do!) I have decided to basically take the bull by the horns and inform him by letter on Friday night that as of Sunday he will be losing 9 hrs per week and if he doesn't want to do this he will have to take us to tribunal. I know it seems like we are riding roughshod over him but we cannot afford to continue any longer with this issue as we will end up losing more than just a few hours. Please if you have any advice as to how to word this letter either pm me or post on here for me, I know this isn't going to end well but its time to " publish and be damned"