Does TUPE "expire?" - Being told I may not be entitled to full maternity pay

jessicamcelvaney

Hi
I am due to go off on maternity leave in six weeks time and I have just provided my employer with my MATB1 form.

The company I worked for has recently ungone a transition to another company and we were told all our contracts and T&C's were protected by TUPE law.

My manager today informed me that when she notified our new HR rep of my pregnancy, she apparently said that I may not get the full 18 weeks maternity pay that I was entitled to with my old employer, because although protected by TUPE, this protection "expires" after a certain amount of time and so I may actually have to go off on maternity leave under this new company's policy (Which has a much shorter time where they pay maternity pay)

HR have said they will look into what I am entitled to and get back to my manager but just through having a quick Google, I found the following on the GOV website.


"Changing an employment contract

TUPE regulations mean employees shouldn’t lose their existing employment rights.
Before the transfer

If the employer knows an employee is transferring to another company, they can’t normally change the employee’s terms and conditions to make them the same as those of the new company - even if the employee agrees to the change.
After the transfer

The new employer can’t change an employee’s terms and conditions if the reason is the transfer itself.
The new employer can change an employee’s terms and conditions if the reason is an ‘economic, technical or organisational reason’ (ETO) involving changes in the workforce or workplace, such as a result of redundancies or a move from a managerial to a non-managerial position. The employee needs to agree to this change.

‘Economic’ reasons are to do with how the company is performing.

‘Technical’ reasons are to do with the equipment or processes the company uses.

‘Organisational’ reasons are to do with the structure of the company."



Would you say this means that despite what HR say, I should be covered by TUPE law and this should allow for me to get 18 weeks full maternity pay, based on my T&C's with my old employer?

InsideInsurance

Is the maternity pay actually part of your contract?

jessicamcelvaney

InsideInsurance wrote: »

Is the maternity pay actually part of your contract?

Before transition to new company, I was contractually obliged to 18 weeks full maternity pay.

InsideInsurance

If its in your contract then it needs to be honoured unless you agree to change contracts.

Its been a long time since I was an employee but a quick scan of my last contract doesnt have anything in about maternity or paternity leave. A quick search of my clients intranet has theirs as part of the Family Leave policy and so not part of their employees actual contracts.

I believe company policies are not subject to anywhere near the protection that contractual obligations are.

KiKi

Hi OP - yes, you should be protected, in short.

TUPE doesn't 'expire', but the organisation can make changes to policies, contracts and terms and conditions of your employment for the ETO reasons that you've cited above.

The gov.uk website says they need your agreement - but if they tell you they're changing your individual contract with the mat leave conditions and you don't challenge it then you may be deemed to have agreed. So be careful not to do that!

If I were you, wait to see what they come back with. If they have any common sense - or internet access - then you'll keep your 18 weeks. If they say you have to take the new terms, tell them that TUPE does not expire, and that you do not accept any of their proposed changes to your contract because they haven't consulted with you, nor provided a valid reason to make these changes. Put that in writing and keep a copy (email is fine). It's important that you spell out you do not accept them. It sounds like the HR rep doesn't really know what she's talking about, and if you just accept it then you could be deemed to be accepting a contractual change. They are not allowed to insist you take the new mat leave conditions in order to harmonise everyone's T&Cs across the company - in my experience that's not a valid ETO reason.

Please note - I'm NOT a TUPE expert, so if someone comes along with better advice who is, then I bow to their superiority!

KiKi


Edit - these might be useful resources for you: http://www.acas.org.uk/media/pdf/l/1/9908-2901767-TSO-ACAS-TUPE_is_changing-ACCESSIBLE.pdf
http://www.legislation.gov.uk/uksi/2006/246/contents/made

TUPE regs were updated in 2014, but that's outlined in the ACAS booklet as well.

ALI1973

I always thought that TUPE offered protection for 2 years, after which the "new" employer is able to make changes to the contract to bring it in line with other employees (after normal consultation etc)?

So, if company A takes over employees from Company B, Company B employees are T&C are kept the same for 2 years, after which Company A can then choose to consult with unions and staff about bringing Company B contracts onto the same T&Cs as the existing Company A employees or of course set up whole new T&Cs.

Of course none of this would affect your rights to statutory maternity pay.

getmore4less

ALI1973 wrote: »

I always thought that TUPE offered protection for 2 years, after which the "new" employer is able to make changes to the contract to bring it in line with other employees (after normal consultation etc)?

So, if company A takes over employees from Company B, Company B employees are T&C are kept the same for 2 years, after which Company A can then choose to consult with unions and staff about bringing Company B contracts onto the same T&Cs as the existing Company A employees or of course set up whole new T&Cs.

Of course none of this would affect your rights to statutory maternity pay.

no 2 years, they can start the process immediately.