TUPE: contract issues

Oldfatgrumpy

I have worked for 10 years doing the same weekend job, 24 hrs/week with overtime during the week as required. Several other people do the same work giving 24/7 cover. I do virtually all the available weekday overtime.

My original contract with company A was at flat rate for all hours worked. In 2008 we all TUPEd to company B then 2 years later TUPEd back to company A at which point we were all required to have a contract review interview.

I was presented with a contract which differed from my original one in that it offered enhanced rates for overtime. I queried this but was told that this was now the correct contract, so I signed it as it was better than my original one.

Several months later, HR realised I'd been given a more beneficial contract, and tried to buy it back off me with a day's extra leave (bringing my leave up to only 2 days below the legal minimum, but that's another story) but I refused to revert.

I suspect that the HR lady who'd made the mistake (we have "history" over several issues) then conveniently "lost" my new contract to cover her tracks, as following another TUPE a few months ago, my new employer, company C, has been passed a copy of the original contract I signed in 2005 with flat-rate overtime. They are now querying my enhanced-rate claims.

Comparing my contract to those of fellow-workers is a non-starter as everybody has been employed on different contracts by different companies over up to 20 years.

I am unable to find my own copy of my enhanced-rate contract, I was carrying it around with me for ages as proof (should have made a copy) but have mislaid it. However I have copies of my timesheets and payslips going back years showing the enhanced rate claims.

Are my timesheets and payslips sufficient to prove my lost contract, or does the contract the new employer holds take precedence?

sangie595

Neither - it depends how far each of you is prepared to push this and what evidence each party has. Without a copy of your contract, then the payslips could be nothing more than evidence of an error in paying you. The employer is not wrong, legally, in paying you what they believe to be your contractual pay, unless you can prove that there was another contract with better terms. To be fair, if the circumstances were reversed, and the contract was in your favour (which is actually what happened before) then you wouldn't voluntarily revert to other contractual terms - they are simply taking the same stance. And realistically, they could change the terms with relative ease anyway (as could the previous employer) and without your agreement. TUPE only protects terms at the point of transfer - after that terms become fair game very quickly.


So I guess the question comes down to, can you find a copy of your contract? Are the employers willing to accept your word for the difference? And if not, how far are you/they prepared to push this? Because in law (as in an employment tribunal) you would probably be on unsafe ground without proof of the contractual terms.