TUPE is my new contract automatically void?

BlindJudge · 10 November 2018 at 10:57AM

Hi all.

Here’s the short question:
Do I need to take court action against a blatant change of contract in a transfer of Undertakings, or is the contract automatically void and I don’t have to worry?

I don’t want to rock the boat unnecessarily.

Background story:

Two weeks ago my old employer who was struggling to keep the business going gave us, the employees, the good news we were all hoping for. A bigger company with a great future bought us. Woohoo!

There was one condition to close the deal: all employment contracts had to be swapped with what all other employees at new company had. If we didn’t sign it the deal was off.

We, begrudgingly, signed it as the employer has great Glassdoor reviews going a few years back. The company is American and they cannot get their heads around the differences in European employment rules.

The most concerning contract changes are:

Notice period from 1 or 3 months to 1 week
Contract start date reset

It’s quite clear in the TUPE directives that the new contract is void, but I cannot find explanations whether I have to get the annulment of the new contract in court now so that I’m truly protected a year down the line.

The time limit for TUPE claims is 3 months only.

I’d rather not as I don’t see how I could still work there with the bad feelings this would bring and I don’t want to look for new work.

I’m getting better paid and have shares in the company, also many experts in the industry congratulated me as this company is set to be huge.

I just want the peace of mind that I still have protection of better notice and continuous contact time.

Thank you all in advance!

sangie595 · 10 November 2018 at 11:14AM

I'd hate to see a long question from you!

Sorry. No peace of mind. And no having it both ways either. Your agreed to the change in contact. TUPE no longer covers you. Full stop. No arguments.

On the other hand TUPE provides absolutely none of the protections people think it does - it's a paper tiger. The new company could have enforced a change almost immediately, would almost certainly have been able to defeat any legal action - without giving you better pay, shares and the rest.

Gift horses comes to mind. You are bound by the terms that you agreed. TUPE does not apply to the contractual change because you agreed it.

Ozzuk · 10 November 2018 at 11:14AM

Hmm, I'm sure someone more knowledgeable will come along, but my thoughts are it is fine to offer a new contract during TUPE, but you should have the option to take your old contract terms across.

Sadly you have accepted a new contract so these are your new terms. My team got TUPE'd a few years ago, some took new contract, some took old. I don't know how far you'd get arguing you were made to sign it, if the alternative was closure/redundancy then you likely didn't have much choice.

To be honest, they could argue that the terms need to change anyway for economic reasons. What is less clear to me is the legality of 1 week notice and contract date reset - does the latter mean they are ignoring years of service? If so, I don't think they can do that.

nicechap · 10 November 2018 at 11:15AM

BlindJudge wrote: »

Hi all.

Here’s the short question:
Do I need to take court action against a blatant change of contract in a transfer of Undertakings, or is the contract automatically void and I don’t have to worry?

I don’t want to rock the boat unnecessarily.

Background story:

Two weeks ago my old employer who was struggling to keep the business going gave us, the employees, the good news we were all hoping for. A bigger company with a great future bought us. Woohoo!

There was one condition to close the deal: all employment contracts had to be swapped with what all other employees at new company had. If we didn’t sign it the deal was off.

We, begrudgingly, signed it as the employer has great Glassdoor reviews going a few years back. The company is American and they cannot get their heads around the differences in European employment rules.

The most concerning contract changes are:
Notice period from 1 or 3 months to 1 week

Contract start date reset

It’s quite clear in the TUPE directives that the new contract is void, but I cannot find explanations whether I have to get the annulment of the new contract in court now so that I’m truly protected a year down the line.

The time limit for TUPE claims is 3 months only.

I’d rather not as I don’t see how I could still work there with the bad feelings this would bring and I don’t want to look for new work.

I’m getting better paid and have shares in the company, also many experts in the industry congratulated me as this company is set to be huge.

I just want the peace of mind that I still have protection of better notice and continuous contact time.

Thank you all in advance!

I very much doubt if a big American company cannot get their head around European employment law. Its probably because they actually have understood the difference that they wanted you to sign new contracts.

You've signed a new contract and in addition accepted their terms & pay by behaviour.

Any new terms and conditions must be compliant with UK/ EU legislation.

getmore4less · 10 November 2018 at 11:16AM

TUPE only protects at the point of transfer and you have agreed to new contract at the point of transfer.

The most concerning contract changes are:
Notice period from 1 or 3 months to 1 week
Contract start date reset

Contract cannot override statutory provisions(with a few exceptions).

Statutory notice is 1 week employee,1 week per year upto 12 employer

TUPE protects continuity of employment.

What sort of company were you working for, TUPE may not apply.

eg. a buy out of a LTD company(shares) is not a TUPE as the employer does not change just the owners.

sangie595 · 10 November 2018 at 11:18AM

Ps. I just reread that and the contract start date can't be reset though (i.e the start date of continuous service) if TUPE applies. But that usually wouldn't change just because you get another contact. You'd get a start date for that contract, but it wouldn't shift continuous service. I'm not sure that you meant continuous service - it wasn't clear

sangie595 · 10 November 2018 at 11:24AM

nicechap wrote: »

I very much doubt if a big American company cannot get their head around European employment law. Its probably because they actually have understood the difference that they wanted you to sign new contracts.

You'd be amazed, but that isn't true! US companies often think they can continue to act as they do in the US, where employment law is almost non-existent. Case in point, Wal-Mart, who spend half their time in employment tribunals. It's part of the "the US is huge and runs the world so the world had to do what we say" syndrome. It's not working for them, but, typically, they haven't noticed.

stator · 10 November 2018 at 12:11PM

The terms in your new contract that are worse than your old contract are void.
Ther terms in your new contract that are better than your old contract are still in force.
Yes, you do get the best of both worlds, yes it is the companies fault for thinking they can ignore the law.

If you start moaning about TUPE now, you will put yourself out of favour in your new company.

Sit back and do nothing. This works in your favour.

If the employer tries to violate the terms of your old contract, then you take them to an employment tribunal and win. If they don't, then you carry on working for them.

getmore4less · 10 November 2018 at 12:25PM

I would have a close look at what has happened.

Did they really buy your old company?

Might they have convinced you to resign and join the new company.

Bought assets off the old company.

Leaving the old company to be dissolved.

BlindJudge · 10 November 2018 at 12:37PM

The terms in your new contract that are worse than your old contract are void.
Ther terms in your new contract that are better than your old contract are still in force.
Yes, you do get the best of both worlds, yes it is the companies fault for thinking they can ignore the law.

If you start moaning about TUPE now, you will put yourself out of favour in your new company.

Sit back and do nothing. This works in your favour.

If the employer tries to violate the terms of your old contract, then you take them to an employment tribunal and win. If they don't, then you carry on working for them.

Thank you for your reply! It’s sad how many employees don’t know their rights as per other replies, that’s why companies try to pull these and usually get away with it, e.g. even the employee cannot agree to a change in contract exactly because of this kind of situation.

All I needed to know is that I can leave things as they are for now.

Thank you

BlindJudge · 10 November 2018 at 12:47PM

getmore4less wrote: »

I would have a close look at what has happened.

Did they really buy your old company?

Might they have convinced you to resign and join the new company.

Bought assets off the old company.

Leaving the old company to be dissolved.

The old company kept its shares and will remain active for tax purposes. The new company bought the workforce only because we are a perfect fit and it’s faster for them than hiring people one by one.

TUPE is my new contract automatically void?

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