TUPE, new contract concerns

holsgirl

Hello,

I was transfered via TUPE recently to another company. After I returned from maternity leave last year I was allowed to reduce to 4days a week instead of my contracted 5 days.
At my old company I didn't sign a new contract as such, I simply wrote a letter initially enquiring about the flexible hours and then my old company wrote back saying they'd change my hours for a 2 month trial. The "trial" ended up sticking; nobody ever raised concerns and so for the past yr I've worked 4 days a week.

However when meeting my new company and then transferring over to them: because I am again due to go on maternity leave in December and because I wanted the option of getting a little more money, I said I was happy to return to the usual 5 days a week instead of my reduced 4.

They said I could work full time and they'd adjust my pay until HR confirmed if I'd need to go onto a new contract with them. Management didn't originally know if I'd need a new contract or not, but I suspected I would do, as my letter from my old company might have been deemed as an official reduction to my hours.
So to now increase my hours, I'll have to sign a new contract, which I'm happy to do. Today I've received a contract from the new company but there are a few things worrying me;

The salary quoted is less, albeit a small amount...am I right in assuming that even if I'm on the new company's contract, I cannot be reduced in wages because I initially transferred over by TUPE? Or are they entitled to give me slightly less annual wage if that's all they think I'm worth?

Also, there is a phrase stating my new start date is 13th June 2011. Any length of employment with a previous company will not form part of my continued employment.
Surely I should still keep my continued employment from the older company that I TUPE'd over from? My worry is, when I go on maternity leave in December, I don't want my maternity leave to be disadvantaged because it could look like I've only worked at the company since June. (obviously I have,but surely my initial 3 yrs with the last company should be taken into account?)

Also,the contract states I've been returned to a 6mth probation period: can they do this?

I'd appreciate your thoughts, I'm going to speak to HR on Monday anyway and raise the "mistakes" on the contract and hope this will resolve things.

Thank you!

ohreally

Unless I'm misunderstanding you, your current contract has been varied at your request to 4 days - the 5 days are gone - this is procedurally correct.

You have approached the employer to work 5 days and the employer is offering you a new contract at reduced earnings?

I'd sit where you are, working 4 days and negotiate with them if they bring the matter back up.

holsgirl wrote: »

Also, there is a phrase stating my new start date is 13th June 2011. Any length of employment with a previous company will not form part of my continued employment.

You need to talk to them as this appears incorrect from information provided.

holsgirl

Thanks for your reply,

yes, I guess the way you've put it is right, they're confirming on the new contract that I can return to 5 days but the salary is less money than I was on previously! So I will ask if this is a mistake, and if it was a deliberate reduction in wages then I will certainly stick to my old 4 days a week.

ohreally

My gut feeling is its not a mistake - they are dictating new terms as a result of you requesting to change your contract back to 5 days.

If there are not going to behave reasonably, remain on 4 days and see what transpires.

Are you a union member?

DVardysShadow

holsgirl wrote: »

... Also, there is a phrase stating my new start date is 13th June 2011. Any length of employment with a previous company will not form part of my continued employment.
Surely I should still keep my continued employment from the older company that I TUPE'd over from? My worry is, when I go on maternity leave in December, I don't want my maternity leave to be disadvantaged because it could look like I've only worked at the company since June. (obviously I have,but surely my initial 3 yrs with the last company should be taken into account?)

Also,the contract states I've been returned to a 6mth probation period: can they do this?

I'd appreciate your thoughts, I'm going to speak to HR on Monday anyway and raise the "mistakes" on the contract and hope this will resolve things.

Thank you!

OK. New start date means that you would lose redundancy for pre TUPE service, if it came to that situation. A new probation period means you could be told to go within the 6 months and you have no comeback. I think you lose too much.

Putting the 2 factors together, I would say that they could even be planning redundancies.

KiKi

It sounds like they've sent out some standard template letters without realising tailoring them to you. Most contracts will say something about continuous and previous employment, but wouldn't apply to your situation. Sounds like shoddy admin! Have a chat with them on Monday.

As for the salary issue, they might (but I don't know the legalities) have the right to effectively put you onto a new contract because you're requesting to change hours - and therefore they can change the terms and salary as a consequence. Hopefully a TUPE expert will be along soon to answer!

KiKi

holsgirl

Thanks all,
I'm not in a union unfortunately...

I think the shoddy admin may be to blame, but I feel the fact they've stated "any previous employment will not form part of your continuous employment" has specifically been added, because you wouldn't normally expect that phrase on a new standard contract.
So they may be hoping I'll just sign it, and then if they are planning redundancies I will be fair game due to having a short notice period and I wouldn't then be entitled to receiving any redundancy pay!

I'll see if any TUPE knowledgeable peeps can comment on this, and even if not, I'll see how I get on Monday

M

ohreally

If in doubt, do nothing.

Is there a union recognised in the workplace?

KiKi

holsgirl wrote: »

I think the shoddy admin may be to blame, but I feel the fact they've stated "any previous employment will not form part of your continuous employment" has specifically been added, because you wouldn't normally expect that phrase on a new standard contract.

I disagree - every contract as a new employee I've signed has said that. It's to protect against anyone who thinks they have continuous employment from working as a temp, or any other form of previous employment (eg, a perm or fixed term contract, then a break before returning).

I think that's the part that's shoddy admin, as it sounds like a new starter contract to me.

The salary I don't think you get can round, as you're asking to change your contract, which I would assume means they can take that opportunity to change other T&Cs such as your salary.

KiKi

Going4TheDream

You are right to say that your terms and conditions and continuous service Tupe'd over with you, however TUPE law is very complex, the sticking point for me is whether you were officially Tupe'd as a full time employee, or whether you were Tupe'd as an employee on a 4 day week... it is not explicitly clear from your post. If you have now asked to vary your contract to work 5 days and they believe that you are Tupe'd on a four day contract then this likely why they have produced a new less favorable contract. Effectively it is becoming a new job, even though it is the same job albeit with more hours hence losing service etc. I would really advise you due to the complexity of your situation to speak to ACAS as soon as you can.