Holiday Increments after TUPE

deneway

Hi, Could anyone confirm if after being tupe'd the holiday increments from the previous company should be carried on and applied by the new company? example: old company after 10 years an extra day holiday was add to yearly entitlement, however I was tupe'd after 6 years and have now been with the new company for over 6 years but the extra day wasn't added to my entitlement, wondering if it should have been?  TIA

LinLui

The obvious question would be - have you asked them? The fact is that it would depend on whether this was policy or contractual, and whether (if contractual) you are still on the same contract that you were on six years ago. Both questions that we can't answer but the employer can. Once you know the answers, you can come for further advice if you disagree with what they say.

Brie

So it's 6 years since you tupe'd over?  I know in some situations certain bits of the previous contract only applies for 2 years after the tupe so that may be the issue.  Or they simply don't know.  I had a similar thing in an employment contract (extra day after 5 years) and even the HR department wasn't aware of it until I'd pointed it out.  Tends to be more complicated the higher the range of contracts a company has - there's no way someone will be aware of everything.  

LinLui

I know in some situations certain bits of the previous contract only applies for 2 years after the tupe so that may be the issue.

That's not technically correct. There is no "drop off point" for TUPE terms at 2 years. TUPE, in theory, lasts forever. But it becomes easier for terms to be normalised, dropped or changed the longer from the TUPE date you go, and there is a kind of "consensus" that changes are harder to resist after the two year mark because if an employee doesn't like the change, their only option is a tribunal, and broadly speaking tribunals have tended towards thinking that there has to be some lattitude for employers as nothing ever stays the same, even without TUPE considerations. So it would be have to be a huge change for a tribunal to err towards the strict letter of the law that allows no changes, but  equally tribuanls have supported ETO changes immediately after TUPE. So its a very unclear position, although if the term has changed, I suspect that challenging for one day extra leave would not be on the cards. 

To be honest, I think TUPE law is poorly drafted - it is short and concise and ought to work better than it does. The brevity is so far off being helpful that everything is left to the opinions of courts. In some ways, it might help everyone to know where they stand if it did have some timescales for some protections.

deneway

LinLui said:

The obvious question would be - have you asked them? The fact is that it would depend on whether this was policy or contractual, and whether (if contractual) you are still on the same contract that you were on six years ago. Both questions that we can't answer but the employer can. Once you know the answers, you can come for further advice if you disagree with what they say.

Yes, still on the same contract, upon checking it was a Annual Leave Policy so not Contractual so I guess the new company don't have to apply (other parts of the Terms stated yes/no for contractual). thanks for all you replies, I wll ask anyway them may decide to give the extra day... or not.

EnPointe

deneway said:

Hi, Could anyone confirm if after being tupe'd the holiday increments from the previous company should be carried on and applied by the new company? example: old company after 10 years an extra day holiday was add to yearly entitlement, however I was tupe'd after 6 years and have now been with the new company for over 6 years but the extra day wasn't added to my entitlement, wondering if it should have been?  TIA

IF you are still employed  on exactly the same terms  as you  were when you TUPEd  ( same role,  grade , site etc ) you'll have to refer back to the measures  agreed as part of the TUPE , if you  don;t have the paperwork  hopefully you are part of a union which has retained the documentation. 

if it was i nthe measures it  may have been  changed  , either by  slipping it in  , epsecially if  staff prepresentation is  weak or  'brought out' at some point 

 the