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Ben Jones
Ben Jones, UK Lawyer
Category: UK Law
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I am currently being TUPED at work, we were consulted on a

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I am currently being TUPED at work, we were consulted on a proposed roster at the new company and we had agreement. We also receive a shift allowance as the work involves bank holiday weekend and night duty. Now, two weeks before the transfer is due to take place we have been given a different roster from the new company to that consulted they have also stopped our night duty allocated it to new staff they have employed and reduced our shift allowance and therefore pay by 5 per cent. I thought our pay was protected under TUPE so wondering if they can do this legally ?

Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.

Ben Jones :

Before proceeding please note that as I am a practising solicitor, I am often in and out of meetings, travelling between clients or even at court when I pick your question up. This may even occur at weekends. Therefore, I apologise in advance but there may be a delay in getting back to you and providing my advice. Please be patient and I will respond as soon as I can. You do not have to wait here and you will receive an email when I have responded. For now please let me know whether your hourly rate/salary has been altered?

Customer:

Hello Ben,

Customer:

We aren't paid on an hourly rate, we do receive a monthly basic which is unchanged to which they apply a 12.5 percent shift allowance each month to cover all weekend and bank holiday and night working we do

Ben Jones :

If TUPE applies to a transfer, then the transferring employees will move to the new employer on the same terms they were employed under just before the transfer. Simply put, the new employer will 'step into the shoes' of their old employer. This means the employees will preserve their continuous service with the employer and can expect to transfer their contractual terms and conditions over.


 


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 such changes are void, unless the employer can show they were in no way connected to the transfer or if they were required for an economic, technical or organisational reason (ETO reason).


 


Some employers may try and justify changes by arguing that they are needed due to harmonisation and therefore rely on an ETO reason. 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.


 


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.


 

Customer: Thanks, XXXXX XXXXX I understand a little about TUPE but my specific
Customer: My specific question was wether they can reduce the shifts we work and cut our current shift
Customer: allowance by five percent, I can't see the answer in the narrative, sorry
Ben Jones : Hi the answer is above really, such changes are automatically unfair unless the employer can show that they were necessary for an economic, technical or organisational reason
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