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  • FIRST POST
    • TikkaCleo
    • By TikkaCleo 17th Oct 16, 1:36 PM
    • 6Posts
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    TikkaCleo
    TUPE question
    • #1
    • 17th Oct 16, 1:36 PM
    TUPE question 17th Oct 16 at 1:36 PM
    Hello

    I am posting on behalf of a friend who has a TUPE query. I think I have all of the relevant information I might need for someone to be able to advise him.

    My friend worked for the local council as a social worker for many years. That service is now being TUPEd over to another public sector employer.
    They were TUPEd over a couple of months ago and once they were there, a restructure took place. They had known this would happen as it had been discussed for a long time. To save money some jobs were changed and regarded. All okay so far.

    My friend has been offered a job on much less money. The employer says it is not too much less and says it is suitable alternative employment. The issue here is that under his old employers terms and conditions, he has salary protection of 5 years. Under the new contract the salary protection will only be one year.

    The new employer is saying that one year applies, whereas my friend thought that his old T&C had to be upheld as he should not have less favourable terms. The new employer is arguing that the acceptance of a new contract puts him onto the new T&Cs and that the salary protection does not apply. They said it would only apply if he had already been on salary protection - they then would have continued it for the 5 years.

    He needs to know whether to fight it or not. ACAS don't seem to be grasping his point.

    Many thanks for any advice I can pass onto him.
Page 1
    • p00hsticks
    • By p00hsticks 17th Oct 16, 2:17 PM
    • 4,922 Posts
    • 4,320 Thanks
    p00hsticks
    • #2
    • 17th Oct 16, 2:17 PM
    • #2
    • 17th Oct 16, 2:17 PM
    I'm not an expert but I don't think that TUPE is really relevant at this stage. Under TUPE he retained his existing terms and conditions at the point of the transfer but the new employer can then propose changes to those T&Cs in exactly the same way that the old employer could have done if the TUPE had never occurred.
    • getmore4less
    • By getmore4less 17th Oct 16, 4:11 PM
    • 26,243 Posts
    • 15,785 Thanks
    getmore4less
    • #3
    • 17th Oct 16, 4:11 PM
    • #3
    • 17th Oct 16, 4:11 PM
    how much less money, if that suitable alternative only comes with one years protection of the current salary the drop may be too much.

    get the union on the case.

    ultimately it would be a tribunal case to decide if the drop/protection is sufficient to make it suitable but give us an idea of how big and people can say what they think.

    if he has already taken a new contract since the TUPE that only has one year protections then he will have have lost the 5 years anyway.
    • TikkaCleo
    • By TikkaCleo 17th Oct 16, 7:44 PM
    • 6 Posts
    • 0 Thanks
    TikkaCleo
    • #4
    • 17th Oct 16, 7:44 PM
    • #4
    • 17th Oct 16, 7:44 PM
    Thanks for your help so far.

    He hasn't accepted a new contract yet. They are TUPEd over on their current/old T&C. If he accepts this lower paid job (20% less) then he wants to know whether upon accepting the job - and therefore the new contract - he should get the 5 years protection. Or, does acceptance of the new contract mean he only gets one year?

    If the latter, then when would the old T&C with 5 years salary protection EVER apply?
    • tgon
    • By tgon 18th Oct 16, 8:26 AM
    • 557 Posts
    • 266 Thanks
    tgon
    • #5
    • 18th Oct 16, 8:26 AM
    • #5
    • 18th Oct 16, 8:26 AM
    If he accepts a new job with a new set of T&Cs then he is forfeiting his TUPE.
    • getmore4less
    • By getmore4less 19th Oct 16, 7:38 AM
    • 26,243 Posts
    • 15,785 Thanks
    getmore4less
    • #6
    • 19th Oct 16, 7:38 AM
    • #6
    • 19th Oct 16, 7:38 AM
    What are the terms of the current 5y pay protection
    • sangie595
    • By sangie595 19th Oct 16, 8:18 AM
    • 2,735 Posts
    • 4,276 Thanks
    sangie595
    • #7
    • 19th Oct 16, 8:18 AM
    • #7
    • 19th Oct 16, 8:18 AM
    I think that if the employer insists on standing their ground, then they would probably win. I am not so much convinced about the argument that the term of five years protection would be lost because it is a new job - the term applies to the TUPE'd job, not the new one. I am simply not convinced that changing this protection after TUPE, which is probably policy rather than contractual (and therefore can be changed) would win any support in a tribunal - such a policy would almost certainly fall as uneconomic in the current climate. And I am afraid that a one year salary protection would almost certainly also be deemed as making the job a suitable alternative - one year is more than enough time to find another job if the person is not happy with the situation. Six months is usually very acceptable to tribunals, and sometimes less, so a year isn't going to raise any huge red flags.
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