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I used to work for the NHS but my Department has been privetised.

There was the usual 'consultation'...
I used to work for the NHS but my Department has been privetised. There was the usual 'consultation' period. My new employer now insists that I now have to be prepared to work at another location an extra 30 miles away.While thay are going to pay mileage and expences I will not be compensated for the extra travel time, 2Hrs a day.
I changed my working hrs due to Child care restrictions. I now work 09:30 till 17:00 my employer now insists that I work these Hrs at the new location. Can you please advise me of my rights.

Jon.
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Answered in 4 hours by:
7/21/2013
Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 50,497
Experience: Qualified Employment Solicitor
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Ben Jones :

Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today.
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 exactly how long you have worked there.

Customer:

I have worked for the NHS for eleven years then 13 months ago my department was Privatised my IPP.(Intergrated Pathology Partnership).

Ben Jones :

Hello Jon, sorry I was offline by the time you had replied. I presume that due to the privatisation you were transferred to the new employer under TUPE.


 


TUPE applies 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.


 


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. 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.

Customer:

I guess the question is, Is the 30 extra miles they are expecting me to commute to one of the work sites a reasonable condition on employment. Even if it it means I am not able to fulfill my contracted hrs due to child care commitments. Is this grounds for constructive dismissal?

Ben Jones :

whether it is reasonable will depend on the individual's circumstances. So whilst for someone with no childcare arrangements this may not necessarily pose a big issue, for you it obviously does and it would be this that makes this unsuitable and unreasonable. This may indeed prompt resignation and a claim for constructive dismissal, however no one can predict if such a claim will actually be successful

Ben Jones
Ben Jones, UK Lawyer
Category: UK Employment Law
Satisfied Customers: 50,497
Experience: Qualified Employment Solicitor
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The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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