TUPE and maternity leave

Toooldforthis

Quick question. .. if after maternity leave I wish to return to work on less hours does that affect my protection under tupe ie will they be able to put me on their contract and pay me less ??

mozzie1

Hi there. Congrats on the baby.

As far as I am aware, all terms and conditions (except pension as you state) are protected under current TUPE law so if you were to return on less hours this should not affect those.

However, it is only your right to ask for flexible working or return to work on fewer hours, less days etc. If the company can prove this is not feasible economically they don't have to grant that.

When is the TUPE taking place. Have you already asked for the change and your old employer said yes. If so, get it in writing and the new company should then honour it.

Call ACAS for expert advice. They are brilliant and friendly.

Hope this helps. Good luck

Bobl

I believe if you change your hours you are effectively negotiating a new contract, therefore you will lose your transferred rights. I am not an expert but this is based on experience of managing staff who return on less hours.

Bobl

To clarify, you have the right to request flexible working on the same T's&C's but if the employer cannot, for business reasons, provide that and you still want to return on less hours you will in effect be negotiating a new contract.

mozzie1

Hi again...

Just wanted to make your status clear...

If you go back to work part time, your terms and conditions of employment should not be changed without your agreement. If your terms and conditions are changed, you may be able to make a claim for discrimination to an employment tribunal.

Again you can request a change in hours but the company does not have to agree to this if they can show an economic reason that this would be detrimental to the business.

If you have been on Ordinary Maternity Leave ie for 26 weeks and return to work then you are entitled to restart your old job.
If you take Additional Maternity Leave ie over 26 weeks up to 52 weeks (or more if your contract permits this) then you are not necessarily entitled to your exact job back but you must be kept on the same terms and conditions and pay although your job title and description may change.

If you had already spoken to your old employer about returning to work on different hours and they had already agreed do ensure they put this in writing to you. Assume you had not agreed to any change in your terms and conditions if this is the case.

All warranties, agreements and liabilities must be taken over by the new employer so if you had agreed this they should honour it.
If they don't or they make you renegotiate your terms and conditions without your agreement they are not following TUPE regs.

If however you had not agreed flexible working with the old employer and the transfer date has already passed you would have to request this from the new employer. They cannot change terms and conditions unless you agree to them. But this is only a right to request they may be able to refuse your request because of economic grounds.

However, find out what they have done with regards to flexible working with their current staff. They may have allowed this and therefore not allowing you to do this may be discrimination.

A lot of what happens depends on the timing of your request and whether you asked the old employer or will be asking the new employer. Again call ACAS for real expert advice.

Good luck again

Toooldforthis

Thanks for the replies :-)
The tupe date bas already passed about a year ago. I am due to go off on maternity leave in October and want to take the 26weeks and then go from 4 days to 3 . Other people have changed their hours daysetc after the transfer and have not been made to change their contract so im hoping mine is the same . I appreciate it's a while away but wanted to know where I stand ASAP.

mozzie1

Hi there. Well if the transfer was a year ago and there are precedents set with oither staff asking for and being allowed to reduce hours on the same terms and conditions I would imagine your employer seems very fair and flexible and would OK your request.
If they did turn you down they must prove a sound economic business reason for this. But do bear in mind asking is no guarantee of getting your request.
If they did turn you down where they have allowed others and you were not convinced that the reason was sound but because they did not want you continue on your current terms and conditions you could argue that they were discriminating you and treating you less favourably as a direct result of the transfer.

However, as they have granted other requests I honestly think there will not be a big issue.

Before you leave for maternity I would have an open and honest discussion with your employer. Just talking about options does not mean you are committed to them but would allow you to see their response.

Remember if you take your full 52 weeks leave entitlement you do not have to let your employer know when you will return, although most people would have a discussion.
If you intend to return to work earlier (ie after 26 weeks) you need to let your employer know in writing with 8 weeks notice at the latest, as presumbly they make arrangements for job cover while you are away.
Returning to work at 26 weeks means you have the right to return to your exact job and your formal notification is a good time to finalise whether you will be returning on reduced hours, although better to have started the discussions on this earlier.
You are also entitled to ask for up to 10 Keep in Touch days where you can go into work (and get discretionary pay) without losing any of your SMP. Again discuss the possibility of this with your employer before you go on maternity leave.
Your employer may ask you to work these 10 KIT days or part of too but you do not have too. Although they are good way to ease back into work, get up to date on training etc before you return permanently.

Have fun while your off with the baby. Good Luck

Takeaway_Addict

mozzie1 wrote: »

You are also entitled to ask for up to 10 Keep in Touch days where you can go into work (and get discretionary pay) without losing any of your SMP. Again discuss the possibility of this with your employer before you go on maternity leave.
Your employer may ask you to work these 10 KIT days or part of too but you do not have too. Although they are good way to ease back into work, get up to date on training etc before you return permanently.

Have fun while your off with the baby. Good Luck

As mentioned the right for KIT days is to ask. The employer is under no obligation to allow them.