Question regarding TUPE and change (lowering! ) of contracted hours

megaginge

I am a salaried staff member on PAYE who has been contracted full time to a 3rd party org for almost 4 years now (subcontracted)

My company has recently been acquired by a larger co, and we are undergoing the TUPE process to move onto newco contracts.

My customer has a written contract with oldCo to work 37.5 hours a week
newCo (And in theory this is a great term) expect us to work only 35 hours a week
Through novation, newCo have no interest in adjusting the contract with my customer from 37.5 hours per week to 35.

My contract of course has provision for reasonable overtime to "get the job done" as do most tech contracts (I work in IT)

My issue is, I don't think reasonable overtime is "you must always work 10 hours a month you aren't paid for". ESPECIALLY when, in comparison with peers within my org who are NOT on long term contracts to customers, they will all benefit from a 30 minute shorter working day, whilst I, through some kind of inverse reward system for having been billable almost constantly for 4 years will "have" to work longer than all of my colleagues do for no pay?

That said, I never "only" work 37.5 hours. I've now been at my desk today for 11. But that's besides the point...

This isnt a degredation of terms, it's just a matter of fairness. Almost all of my peers will have 10 hours a month more time going forward. I, through no fault of my own - will not.


I presume I have no leg to stand on and just have to lump it, especially when at face value the move is a positive one, but just wonder if anyone has any ideas about such a thing?

PS - spoke to HR, they basically said "be lucky your salary isn't being reduced to account for your working less hours". Or to put it another way, a veiled threat to shuddup.

What do people think? I'm just intrigued to if there's any sort of precedent here ...

KiKi

You're not working more for no pay, though. You're working 37.5 hours for the salary you've agreed; they're working 35 hours for the salary they've agreed. Otherwise, by your logic, anyone on a lower salary than someone else is working 'for no pay'.

With TUPE the whole point is that your contract is protected. I completely get why you'd want to work 35 hours instead! But would you want them to change your salary? Your pension? Your AL days? Your entitlement to sick pay etc? Unfortunately you can't pick and choose which elements you want, and take the better terms whilst refusing to change the worse terms! If they were trying to reduce your salary you'd be furious!

You may find that on most days - unless they are clock watchers (which I suppose they may be if you have billable hours) - you'll end up just doing the same sort of hours as your colleagues anyway. But if 11 hour days are not that unusual then, let's face it, it doesn't really matter anyway!

KiKi

sangie595

megaginge wrote: »

I am a salaried staff member on PAYE who has been contracted full time to a 3rd party org for almost 4 years now (subcontracted)

My company has recently been acquired by a larger co, and we are undergoing the TUPE process to move onto newco contracts.

My customer has a written contract with oldCo to work 37.5 hours a week
newCo (And in theory this is a great term) expect us to work only 35 hours a week
Through novation, newCo have no interest in adjusting the contract with my customer from 37.5 hours per week to 35.

My contract of course has provision for reasonable overtime to "get the job done" as do most tech contracts (I work in IT)

My issue is, I don't think reasonable overtime is "you must always work 10 hours a month you aren't paid for". ESPECIALLY when, in comparison with peers within my org who are NOT on long term contracts to customers, they will all benefit from a 30 minute shorter working day, whilst I, through some kind of inverse reward system for having been billable almost constantly for 4 years will "have" to work longer than all of my colleagues do for no pay?

That said, I never "only" work 37.5 hours. I've now been at my desk today for 11. But that's besides the point...

This isnt a degredation of terms, it's just a matter of fairness. Almost all of my peers will have 10 hours a month more time going forward. I, through no fault of my own - will not.


I presume I have no leg to stand on and just have to lump it, especially when at face value the move is a positive one, but just wonder if anyone has any ideas about such a thing?

PS - spoke to HR, they basically said "be lucky your salary isn't being reduced to account for your working less hours". Or to put it another way, a veiled threat to shuddup.

What do people think? I'm just intrigued to if there's any sort of precedent here ...

This is very convoluted. So I am not sure I grasped the story. If I understand it correctly, The terms of your employment are the same after the TUPE as they were before? So that's what TUPE does. Just because other people are on different terms doesn't mean you are entitled to the same terms.

Obviously, you are entitled to look for other employment where you will get better terms, if that is what you want.

megaginge

I get what you're saying.

Let me simplify the question..

The terms of my new contract are 35 hours a week (an improvement), but whilst most of my colleagues will only be obliged to work those house, I have been subbed out for 37.5 in a contract between my Co and a customer.

So I'm obliged to always work more than my contracted hours (whereas most of my peers are not, which may not be relevant). The question is I suppose then less about tupe and more about whether 'reasonable overtime' can be considered my company knowingly billing me out for more time (and expected me to work it) than I actually get paid to do - consistently.

Blah

sangie595

I think it depends on how much it is worth making a fuss. You say you have always worked more than your contractual hours. Has that changed? Because if it hasn't, I am not seeing that you are working any more hours than before and you are getting paid the same. So the 35 hours is something of a red herring since you never worked 37.5 either! This only matters if you intend to say that you will work 35 hours and no more. Are you planning to say that?

megaginge

More or less the conclusion I came to as well, shut up and get on with it. Wanted to ask the question in any case.

Appreciate your input ...

KiKi

megaginge wrote: »

I get what you're saying.

Let me simplify the question..

The terms of my new contract are 35 hours a week (an improvement), but whilst most of my colleagues will only be obliged to work those house, I have been subbed out for 37.5 in a contract between my Co and a customer.

So I'm obliged to always work more than my contracted hours (whereas most of my peers are not, which may not be relevant). The question is I suppose then less about tupe and more about whether 'reasonable overtime' can be considered my company knowingly billing me out for more time (and expected me to work it) than I actually get paid to do - consistently.

Blah

Oh, I see. I misunderstood, apologies. I think it depends how much you want to rock the boat.

If it were me, and I had a (seemingly) good relationship with my new co and customer, I'd simply ask directly how it will be resolved (rather than asking for more money etc). Ie, "I'm contracted for 35 hours, but you've promised the customer 37.5, so I was just wondering how you're going to bridge that gap? Will another employee do an additional 2.5 hours each week or will you pay me the additional amount? Or will you reduce the terms of the client contract to 35 hours?" And see what happens. That way it's not looking like you're asking for anything, but you're raising the issue and asking for a response for the benefit of the client.

But I'd have no problem asking outright like that, and risking being seen as difficult - I have a great relationship with my employer. Only you can make the judgement, but I agree that it's wrong for you to be in this situation in principle. In fact, either HR or whoever leads on the client work should have picked up on it and found a resolution before now - it's not a TUPE issue, it's plain common sense and, quite frankly, putting client work at risk!

I wouldn't dream of contracting with a client to provide X service, then put an employee onto the project without ensuring they had the time / capability to fulfil the client contract. That's just sheer stupidity.

So if you raise it, raise from the perspective of risk to the client and how that will be managed - if they have no answer, offer to work on some solutions, then put them forward.

I also agree with Sangie though - if you are NEVER going to work less than 37.5 hours on this project, then what's the point of complaining?

HTH
KiKi