I have worked shifts and been paid enhancements for weekends and bankholidays for over 20 years, The current company that I have been tupe'd to won the tender from the council over three years ago and are changing my shift pattern to reduce weekends so they dont have to pay enhancements to me and are instead recriuting new staff on minimun wage who will cover my shifts on the weekends. My contract says I must work a shift pattern which will include weekends and bankholidays. Also, they gave us a new rota stating it would change in 28 days but it was rejected by most of the staff. A new rota was given To staff giving A range of 72 to 24 hrs notice with no consultation. Can they do this?
Province/Country relating to question: england
informal discussion with accordance to the company grievance procedure.
Hello and thank you for your question, which I will be happy to assist you with. Please let me know if the rota is significantly different?
I'm just about to go offline so I may have to pick this up in the morning if thats OK?
The Transfer of Undertakings (Protection of Employment) Regulations 2006 ("TUPE") apply when a business, or part of one, is transferred to a new employer or if there is a service provision change, such as a new service provider taking over an existing contract or an employer bringing the service back in-house. Simply put, if the 'activities' in question cease to be carried out by one employer and are carried out in future by another, TUPE would likely apply.
TUPE has traditionally been regarded as a complicated piece of legislation so I will try and summarise the most important aspects below.
If TUPE applies to a transfer, then the affected employees will transfer to the new employer, preserving their continuity of service and their existing contractual terms and conditions (excluding pension rights), irrespective of whether these terms are written or implied. In addition, it is automatically unfair to dismiss a transferred employee if the sole (or principle) reason for the dismissal is the TUPE transfer.
The new employer may sometimes wish to try and change the transferring employees’ terms and conditions of employment. However, under Regulation 4(4) of TUPE any contractual changes are void if the sole or principal reason for the change is either:
Therefore, it is possible for an employer to make changes to employment terms before or after a transfer where the sole or principal reason is either a reason unconnected with the transfer, or a reason connected with the transfer which is an ETO reason.
Some employers may try and justify changes by arguing that they are needed due to harmonisation. However, Government guidance and case law has restricted the application of harmonisation as a genuine reason to amend one’s terms of employment. Harmonisation will only be a valid reason if there is a change in the workforce and this must involve change in the numbers, or possibly functions, of the employees. In practice, relatively few contractual changes would involve such a change in the workforce so harmonisation is unlikely to be used as a justifiable reason.
If the changes are part of a wider reorganisation which has nothing to do with the transfer, then they may be effective. The longer the gap between the TUPE transfer and any reorganisation, the greater the chance that the causal connection will be broken. However, there is no specific period after which it is safe to say that the connection with the TUPE transfer has been broken, as the test is whether the change is connected to the transfer. The mere passing of time does not of itself break the connection.
It is for the employer to prove that a proposed change is permissible under TUPE and if there are concerns that the changes cannot be made, this can be challenged by raising a formal grievance first and then considering making a claim in an employment tribunal.
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Hi, Just to clarify can they bring in new staff and reduce my weekend shifts to save themselves money at my expense even though I have done them for so long and am still available to do them?
Not really, no. If you have done these shifts for so long you will have rights to treat them as contractual and as such the employer can't really change them without your consent. They may try and force these changes through but it may be difficult for them to justify doing this if all they are doing is replacing you with someone else.
Who do they have to justify this to because they clearly are not concerned about upsetting me.
That is if you are going to take this matter forward, such as by going to tribunal. That is where their actions will be challenged and they will need to justify them
Do I have to resign to take them to a tribunal and can it be done whilst in employment?
you would either have to resign or be dismissed
Expert in UK Employment Law
Hello, Following our recent conversation, this is just a quick follow up to see how you are getting on and to check if my advice has been helpful in dealing with your query? I look forward to hearing from you.Regards, Ben
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