TUPE and how it applies to homeworker status

Auti

Is there a medical reason you cannot work in the office? As that may help as a reasonable adjustment (given that it has worked well so far). Could you manage a couple of days a week in the new office and the rest homeworking? Just trying to think of compromises/ideas you could take to your next meeting.

daveyjp

'Refusal to travel' is very different from 'refusal to work from'.  Some hoemworkers may find it impossible to travel a long distance as and when required.

OP.  Ask the questions and get all the facts in place before considering doomsday scenarios.  ACAS are excellent if you need advice.

Andy_L

grimsalve said:

dharm999 said:

Not under TUPE, no, would be my opinion.

I was just looking on the lawsuperstore website just now and it states...

Under TUPE, if your old employer has guaranteed certain provisions, such as letting you work from home, then these are transferred to the new employer. It’s about making the process as seamless and fair as possible for all employees.

...but possibly this is just for the transfer too.

So it looks like they are going to make me redundant. This winter is going to be a struggle

Had the transfer not happened your previous employer could, by following appropriate procedures, have made changes to your T&Cs of employment.

All TUPE does is prevent the new employer from changing those T&Cs automatically as a result of the transfer (eg because all their staff have 2 days less holiday entitlement then you, instantly, lose 2 days holiday on transfer)

The new employer, like the old employer, can, "by following appropriate procedures, [make] changes to your T&Cs of employment."

Andy_L

dharm999 said:

Not under TUPE, no, would be my opinion.

but you may have under other employment law

tightauldgit

grimsalve said:

dharm999 said:

Given it’s been a few years, then extremely unlikely TUPE rules would protect you.  Your new employer can change your T&Cs, as long as they follow the correct process

I understood that TUPE was "indefinite" - ie. ...

What is the period of protection and how long is TUPE valid for? The period of protection afforded by TUPE is indefinite. If the change to a transferring employee's terms and conditions of employment is because of the transfer, it will be prohibited, even if it occurs some years after the transfer took place.

is that no longer the case?

It's indefinite but only protects you for things happening because of the transfer - even then employers can make changes like this for economic reasons and be allowed.

Of course have you actually spoken to them about it and confirmed that you won't be able to continue to work from home? It may simply be that they change your 'base office' from A to B but you just continue to WFH as before. 

What you are describing goes beyond a change of office location if they are also removing your ability to work from home and if there's a genuine reason for you to need to work from home you may be protected in other ways. I think you probably need to speak to HR or your line manager about the change and confirm what is actually happening and raise your concerns.

Once the position is clear you can decide what to do next.  

grimsalve

Auti said:

Is there a medical reason you cannot work in the office? As that may help as a reasonable adjustment (given that it has worked well so far). Could you manage a couple of days a week in the new office and the rest homeworking? Just trying to think of compromises/ideas you could take to your next meeting.

The other office is about a 2 hour drive away and apparently there's no parking available on site (as it's in the city centre) so it's either drive most of the way and then park and ride or public transport all the way.

grimsalve

Andy_L said:

grimsalve said:

dharm999 said:

Not under TUPE, no, would be my opinion.

I was just looking on the lawsuperstore website just now and it states...

Under TUPE, if your old employer has guaranteed certain provisions, such as letting you work from home, then these are transferred to the new employer. It’s about making the process as seamless and fair as possible for all employees.

...but possibly this is just for the transfer too.

So it looks like they are going to make me redundant. This winter is going to be a struggle

Had the transfer not happened your previous employer could, by following appropriate procedures, have made changes to your T&Cs of employment.

All TUPE does is prevent the new employer from changing those T&Cs automatically as a result of the transfer (eg because all their staff have 2 days less holiday entitlement then you, instantly, lose 2 days holiday on transfer)

The new employer, like the old employer, can, "by following appropriate procedures, [make] changes to your T&Cs of employment."

Okay, I guess that makes sense but if TUPE is only for the transfer then why do websites say it's indefinite?

grimsalve

tightauldgit said:

grimsalve said:

dharm999 said:

Given it’s been a few years, then extremely unlikely TUPE rules would protect you.  Your new employer can change your T&Cs, as long as they follow the correct process

I understood that TUPE was "indefinite" - ie. ...

What is the period of protection and how long is TUPE valid for? The period of protection afforded by TUPE is indefinite. If the change to a transferring employee's terms and conditions of employment is because of the transfer, it will be prohibited, even if it occurs some years after the transfer took place.

is that no longer the case?

It's indefinite but only protects you for things happening because of the transfer - even then employers can make changes like this for economic reasons and be allowed.

Of course have you actually spoken to them about it and confirmed that you won't be able to continue to work from home? It may simply be that they change your 'base office' from A to B but you just continue to WFH as before. 

What you are describing goes beyond a change of office location if they are also removing your ability to work from home and if there's a genuine reason for you to need to work from home you may be protected in other ways. I think you probably need to speak to HR or your line manager about the change and confirm what is actually happening and raise your concerns.

Once the position is clear you can decide what to do next.  

I had an informal chat with my boss about it after the announcement was made by our HR and the reasons behind this seem to be 1. to force all employees back into the office (regardless of their status before covid) 2. shut down one office to save money and move everyone into the other office. Any employee that quits or takes redundancy is basically "collateral damage" as they want to reduce the headcount anyway.

One option my boss mentioned was that I agree to change my contractual location from home to the other office and then he would turn a blind eye to me not being there... but I think that's a very dodgy position to be in and I wouldn't be happy about that (especially if he quits/takes redundancy and I end up reporting to someone who expects me to be in the office every day).

It was at this point I started to wonder if the TUPE rules would protect me from this proposal but from what I've been reading here I'm guessing it doesn't.

Andy_L

grimsalve said:

Andy_L said:

grimsalve said:

dharm999 said:

Not under TUPE, no, would be my opinion.

I was just looking on the lawsuperstore website just now and it states...

Under TUPE, if your old employer has guaranteed certain provisions, such as letting you work from home, then these are transferred to the new employer. It’s about making the process as seamless and fair as possible for all employees.

...but possibly this is just for the transfer too.

So it looks like they are going to make me redundant. This winter is going to be a struggle

Had the transfer not happened your previous employer could, by following appropriate procedures, have made changes to your T&Cs of employment.

All TUPE does is prevent the new employer from changing those T&Cs automatically as a result of the transfer (eg because all their staff have 2 days less holiday entitlement then you, instantly, lose 2 days holiday on transfer)

The new employer, like the old employer, can, "by following appropriate procedures, [make] changes to your T&Cs of employment."

Okay, I guess that makes sense but if TUPE is only for the transfer then why do websites say it's indefinite?

Because the protection against making a change purely because of the transfer lasts for ever. Eg 4 years down the line they couldn't just transfer you to the, worse t&c's, of their staff but have to go through a process which includes showing why it isn't why it isnt related to the transfer

thebrexitunicorn

grimsalve said:

tightauldgit said:

grimsalve said:

dharm999 said:

Given it’s been a few years, then extremely unlikely TUPE rules would protect you.  Your new employer can change your T&Cs, as long as they follow the correct process

I understood that TUPE was "indefinite" - ie. ...

What is the period of protection and how long is TUPE valid for? The period of protection afforded by TUPE is indefinite. If the change to a transferring employee's terms and conditions of employment is because of the transfer, it will be prohibited, even if it occurs some years after the transfer took place.

is that no longer the case?

It's indefinite but only protects you for things happening because of the transfer - even then employers can make changes like this for economic reasons and be allowed.

Of course have you actually spoken to them about it and confirmed that you won't be able to continue to work from home? It may simply be that they change your 'base office' from A to B but you just continue to WFH as before. 

What you are describing goes beyond a change of office location if they are also removing your ability to work from home and if there's a genuine reason for you to need to work from home you may be protected in other ways. I think you probably need to speak to HR or your line manager about the change and confirm what is actually happening and raise your concerns.

Once the position is clear you can decide what to do next.  

I had an informal chat with my boss about it after the announcement was made by our HR and the reasons behind this seem to be 1. to force all employees back into the office (regardless of their status before covid) 2. shut down one office to save money and move everyone into the other office. Any employee that quits or takes redundancy is basically "collateral damage" as they want to reduce the headcount anyway.

One option my boss mentioned was that I agree to change my contractual location from home to the other office and then he would turn a blind eye to me not being there... but I think that's a very dodgy position to be in and I wouldn't be happy about that (especially if he quits/takes redundancy and I end up reporting to someone who expects me to be in the office every day).

It was at this point I started to wonder if the TUPE rules would protect me from this proposal but from what I've been reading here I'm guessing it doesn't.

For your role to be redundant it would have to no longer exist.  The employer just deciding that they want you in an office when you’ve been contracted to work from home for years is unlikely to be an adequate reason.  This is assuming that your job still exists in its current form and there are no issues around performance.