Tuped

[littlesally]

Please could someone advise me about tupe
I worked for a company for nine years so got the highest rate of pay and days off that they gave.

Then the company lost the contract to another company doing similar.
Anyway the rate of pay that team got is approx 5k more plus three extra days off.
There are three of us on the team - only me on the low rate.
At the time of negotiations I agreed to this as there was a lot of pressure and the new company didn't have to agree to take me.

It has now been eighteen months.

My union have been involved but my manager said that while the company are making cut backs, no overtime etc, they can't justify paying me more. My union rep just caved and said 'ok'

My argument is - how can a company justify paying two different rates for the same job?
How is that ethical never mind legal?

It has a big effect on me psychologically. I am equal in every way, actually higher trained, done the job longer than the others yet I feel 'less than'.

If someone left then the job would be advertised at 3k more than I get - so a newcomer would earn a chunk more than me! And because I am on the highest rate the old company pay I will not gain any annual increments etc. The newcomer will get even more than me as the years go by.

What can I do about this? How long can I be kept on this rate? Forever?

Anyone got any ideas?

[judgemental24]

Re: Tuped

With TUPE the idea is that your existing terms and conditions are protected. This in reality is just a cover story.

The legislation gives about 18 months to harmonise contracts of employment

The only time it will be unlawful is if the pay rates are different between a man and woman doing the same designated job roll as to the contract of employment. Checkout operator in a supermarket as an example

That goes for terms and conditions as well as to entitlements such as holiday, sick pay etc in excess of minimum statutory requirement

[littlesally]

Re: Tuped

What do you mean by eighteen months to harmonise?

[judgemental24]

Re: Tuped

Your old contract and the new companies contract of employment become the same. 18 months is a broad figure but i have known it be done within months

The reality is that the employer has so many options open to them now that puts TUPE to shame. Simply quoting Economic, Organizational, or Technological reasons is enough now

To be honest you need to think yourself lucky as with most TUPE, redundancy normally follows

Employment legislation is never on the side of the employee, and it has degraded even more under the Conservatives since 2010

[littlesally]

Re: Tuped

But does the new companys contract legally have to merge with the old contract?
My new company seems to be showing no sign of changing my contract in anyway

[judgemental24]

Re: Tuped

The contracts will merge, that is why i said on average 18 months

The Employment Rights Act 1996 allows this through Custom and Practice

You do even have to be given a new contract. The simple fact you did not object through a grievance is enough you have accepted the contractual change

You have three choices

1. Accept the contractual changes
2. Accept the change and work under protest (Grievance)
3. Resign and claim constructive dismissal

[littlesally]

Re: Tuped

I am still not understanding the phrase "contracts merge"
Is that just 'hopefully' or legally?
My new company hasn't shown any sign of merging contracts. I have had no pay rise in eighteen months.

Does this mean I need to make a grievance?

[judgemental24]

Re: Tuped

You cannot have two contracts of employment for one employer. When you were TUPED over you old contract ceased to exist. , only existing protected contractual terms

When were you TUPED over, how long ago??

[stevemLS]

Re: Tuped

Sadly employees often lose out following a TUPE transfer.

TUPE is about preservation of existing terms, there is NO duty so far as I am aware to assimilate the transferred employees onto the more advantageous terms.

I don't know where this concept of "contracts merging" comes from - any authority?

Unless you have a contractual right to a pay rise (very unusual) the fact that you haven't had one does not provide any legal cause of action, whether it justifies a grievance or not is another matter. Have other staff had their salaries reviewed?

[judgemental24]

Re: Tuped

It is not merging contracts as such but harmonising protected express and implied terms between the two different employers on existing terms prior to the transfer. Most employers following a TUPE Transfer have a six and twelve monthly Post Implementation Review (PIR) to iron out any contractual issues


- - - Updated - - -

http://www.acas.org.uk/index.aspx?articleid=4598

[stevemLS]

Re: Tuped

Thanks - the article reinforces my understanding that there is no obligation to harmonise - "It is likely that a new employer may want to ......" is far from an obligation.

OP's new employer shows no sign of wanting to do so.

(I agree that most would, but it would seem there might be significant cost in doing so in this case, call me cynical but......)

[judgemental24]

Re: Tuped

People think they are protected under TUPE??

The reality is that it means squat unless you have Trade Union Representation in the real world

[FlamingParrot]

Re: Tuped

Sadly employees often lose out following a TUPE transfer.

TUPE is about preservation of existing terms, there is NO duty so far as I am aware to assimilate the transferred employees onto the more advantageous terms.

This happened to some former colleagues of mine years ago. Following a TUPE transfer under roughly identical terms (with the exception of discretionary ones such as bonus, pension schemes and holiday pay), a former colleague was not entitled to overtime as the original employer had abolished overtime for permanent staff three years earlier, however, those who were newly employed by the outsourcing outfit they'd been transferred to, were entitled to overtime because this company had a policy of paying it. The problem was that those 'newly employed' had actually also been working for the old employer, as agency temps, and the new employer offered them a permanent contract that included paid overtime. That irritated those who were transferred as permanent members of stuff under their existing terms.

I took this guy to a legal advice centre I'd previously used and he spoke to a solicitor who swiftly suggested arguing discrimination to get around the issue. My friend was a white, English male, however, he also happened to be quite obviously gay. I guess he got lucky because the solicitor who saw him happened to be black so there was a meeting of minds so to speak. He put forward his arguments to the new employers who agreed to pay him overtime. The lack of overtime had nothing to do with his sexual orientation, it was a contractual term, however, it did the trick! :grin: Other than that rather cheeky option, he had no real legal recourse. :mmph:

I don't know where this concept of "contracts merging" comes from - any authority?

There wasn't an authority back then, however, it's been a long time so someone may know of one now.

People think they are protected under TUPE??

The reality is that it means squat unless you have Trade Union Representation in the real world

Not always, I've just won a preliminary hearing where it was established I was an employee of a company I invoiced for several years and the judge ruled there should have been a TUPE transfer when the first company went under so it's not always bad news on the TUPE front.

[teaboy2]

Re: Tuped

[MENTION=31755]littlelady[/MENTION]

Some questions for you.

Are you the only female in the team? If not, what is the pay grade of the other females in comparison to yours i.e. difference in salary?

Its now been 18 months so realistically you should not be paid less then any of your colleagues performing the same job!

[judgemental24]

Re: Tuped

Exactly what i was thinking

Equal pay Act 1970 if doing the same job roll

Thank the Dagenham women for that