Sickness Benefit Terms changed after being TUPE'd to another company
Aubrey_Thicket
Posts: 299 Forumite
Hi all
I am writing this for my good friend who is Polish and doesn't speak good enough English to understand this scenario. Any help would be great with regards to advice.
So my friend Alex used to work at a company called Company 2. In this company if he had a day off sick it was company policy that he got paid. Then, in January this year (2018) he was TUPE'd from company 2 to his present company, company 3 (where he works now).
He recently had a day off sick and didn't receive payment and was deducted. So, he goes to the company and says 'I should get sick pay because I did before I was TUPE'd to you in January this year' etc, etc. The now company (3) told him basically...'That's not our policy here and because you don't have a contract to fall back on it's tough luck'. So, he goes away and goes back to the previous company (2) and asks them for a copy of his old contract so he can show it to his present employer (company 3). However, their response is... 'Because you were ALSO TUPE'd over to us aswell, you will have to go back to your previous company for your contract (company 1). So, Alex now believes that company 1 have gone out of business. So, the questions are...
1. If the first company in the chain has gone out of business (and hasn't forwarded the contract on) how is he supposed to get a copy of his contract to argue his case?
2. Can he say to company 3 (his present company) that because company 2 paid him his sick pay they must also do the same...but more importantly how is he supposed to prove this?
Thanks all.
I am writing this for my good friend who is Polish and doesn't speak good enough English to understand this scenario. Any help would be great with regards to advice.
So my friend Alex used to work at a company called Company 2. In this company if he had a day off sick it was company policy that he got paid. Then, in January this year (2018) he was TUPE'd from company 2 to his present company, company 3 (where he works now).
He recently had a day off sick and didn't receive payment and was deducted. So, he goes to the company and says 'I should get sick pay because I did before I was TUPE'd to you in January this year' etc, etc. The now company (3) told him basically...'That's not our policy here and because you don't have a contract to fall back on it's tough luck'. So, he goes away and goes back to the previous company (2) and asks them for a copy of his old contract so he can show it to his present employer (company 3). However, their response is... 'Because you were ALSO TUPE'd over to us aswell, you will have to go back to your previous company for your contract (company 1). So, Alex now believes that company 1 have gone out of business. So, the questions are...
1. If the first company in the chain has gone out of business (and hasn't forwarded the contract on) how is he supposed to get a copy of his contract to argue his case?
2. Can he say to company 3 (his present company) that because company 2 paid him his sick pay they must also do the same...but more importantly how is he supposed to prove this?
Thanks all.
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Comments
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He should have had consultation and contract review for both the first move and the second. Its common to offer continuation of old contract or choice of new contract, with differences explained but doesn't always happen. Then was the time to check for such a change. I can't see how he'd prove it now - best he check what else he's lost.
If your friend accepted a new contract without checking then I think he's stuck. I'm no expert, but have taken teams through TUPE - sometimes a new contract has more preferable terms (extra holiday/better pension/sick pay) so the employee would move across - but they can choose to stay on old terms.
Old term protection doesn't last forever though anyway, employer can argue economic reasons and change it - not sure on that process though.0 -
Did he not keep a copy of his original contract?0
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Aubrey_Thicket wrote: »1. If the first company in the chain has gone out of business (and hasn't forwarded the contract on) how is he supposed to get a copy of his contract to argue his case?
2. Can he say to company 3 (his present company) that because company 2 paid him his sick pay they must also do the same...but more importantly how is he supposed to prove this?
1. He should have his own copy (but, like many others, probably doesn't...)
2. He can try but is unlikely to get anywhere.
How employable is he? If the answer is 'not very', then rocking the boat could be counterproductive. On the other hand, if another employer would snap him up, perhaps look for another job.0 -
Hi all
It appears that there is no chance of getting the 'original' contract now so to be honest there's not much else I can help with. Thank you for all your advice. I have simply advised him to speak to his Union Rep' if such exists.
Case closed. Thank you all who contributed.0 -
I don't think that's possible. Signing a new contract can not take away rights from the old contract transferred via TUPEIf your friend accepted a new contract without checking then I think he's stuck. I'm no expert, but have taken teams through TUPE - sometimes a new contract has more preferable terms (extra holiday/better pension/sick pay) so the employee would move across - but they can choose to stay on old terms.
He shouldn't need a complete copy of the contract, all he needs is proof of the policy.Changing the world, one sarcastic comment at a time.0 -
Of course you can - if you are offered a new role or different terms and condition (more beneficial terms) then you can chose to move to them. So for instance you are offered a pay increase to move to a new contract but lose say OSP and only receive SSP then you can choose to stay on the old contract or move to the new one.I don't think that's possible. Signing a new contract can not take away rights from the old contract transferred via TUPE0 -
Of course you can - if you are offered a new role or different terms and condition (more beneficial terms) then you can chose to move to them. So for instance you are offered a pay increase to move to a new contract but lose say OSP and only receive SSP then you can choose to stay on the old contract or move to the new one.
Unless the law has changed, no you can't.
If offered a new contract, the employee can get the benefits from it, but the employer can not take away benefits.This would be the case even if transferring employees are offered additional benefits as an incentive to agree to the new PTRs – following Regent Security Services Ltd v Power (2007) and Credit Suisse First Boston (Europe) Ltd v Lister (1998), employees can effectively “cherry-pick” from a set of new terms and conditions, taking the benefit of some (eg a pay rise or bonus payment), while rejecting others as being void (eg new PTRs).Changing the world, one sarcastic comment at a time.0 -
Ooo thanks - apparently a fair few of staff I've transferred out many years ago have had that happen to them so interesting to know that as never had that pointed out on our CPD sessions. Not relevant to my transfers in as tend to be on identical T&Cs.0
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Unless the law has changed, no you can't.
If offered a new contract, the employee can get the benefits from it, but the employer can not take away benefits.
I don!!!8217;t think you!!!8217;re right.
The new NHS deal is entirely linked to pay rise in exchange for reduced sick pay. There again, maybe you!!!8217;re right and the government and unions have got it wrong.Originally Posted by shortcrust
"Contact the Ministry of Fairness....If sufficient evidence of unfairness is discovered you’ll get an apology, a permanent contract with backdated benefits, a ‘Let’s Make it Fair!’ tshirt and mug, and those guilty of unfairness will be sent on a Fairness Awareness course."0 -
It would only affect NHS employees who have been TUPEd, which is probably not many.I don!!!8217;t think you!!!8217;re right.
The new NHS deal is entirely linked to pay rise in exchange for reduced sick pay. There again, maybe you!!!8217;re right and the government and unions have got it wrong.
If you've been TUPEd and your employer says "give up your contractual sick pay and we'll give you a £1000 pay rise" you can take the rise, but if you need to claim sick pay you can claim your old sick pay, although you'll probably have to go to court to get it.
This is because the benefits that are TUPEd are protected in law and then pay rise is simply contractual. A simple contract can't take away rights in law (unless the law allowed it, eg working time directive specifically allows opt out)Changing the world, one sarcastic comment at a time.0
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