Your browser isn't supported
It looks like you're using an old web browser. To get the most out of the site and to ensure guides display correctly, we suggest upgrading your browser now. Download the latest:

Welcome to the MSE Forums

We're home to a fantastic community of MoneySavers but anyone can post. Please exercise caution & report spam, illegal, offensive or libellous posts/messages: click "report" or email forumteam@. Skimlinks & other affiliated links are turned on

Search
  • FIRST POST
    • Aubrey Thicket
    • By Aubrey Thicket 3rd May 18, 12:45 PM
    • 207Posts
    • 64Thanks
    Aubrey Thicket
    Sickness Benefit Terms changed after being TUPE'd to another company
    • #1
    • 3rd May 18, 12:45 PM
    Sickness Benefit Terms changed after being TUPE'd to another company 3rd May 18 at 12:45 PM
    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.
Page 1
    • Ozzuk
    • By Ozzuk 3rd May 18, 2:08 PM
    • 1,319 Posts
    • 1,948 Thanks
    Ozzuk
    • #2
    • 3rd May 18, 2:08 PM
    • #2
    • 3rd May 18, 2:08 PM
    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.
    • polgara
    • By polgara 3rd May 18, 2:09 PM
    • 348 Posts
    • 288 Thanks
    polgara
    • #3
    • 3rd May 18, 2:09 PM
    • #3
    • 3rd May 18, 2:09 PM
    Did he not keep a copy of his original contract?
    • Brynsam
    • By Brynsam 3rd May 18, 2:18 PM
    • 936 Posts
    • 606 Thanks
    Brynsam
    • #4
    • 3rd May 18, 2:18 PM
    • #4
    • 3rd May 18, 2:18 PM
    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?
    Originally posted by Aubrey Thicket
    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.
    • Aubrey Thicket
    • By Aubrey Thicket 10th May 18, 9:16 AM
    • 207 Posts
    • 64 Thanks
    Aubrey Thicket
    • #5
    • 10th May 18, 9:16 AM
    • #5
    • 10th May 18, 9:16 AM
    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.
    • stator
    • By stator 10th May 18, 12:30 PM
    • 6,229 Posts
    • 4,112 Thanks
    stator
    • #6
    • 10th May 18, 12:30 PM
    • #6
    • 10th May 18, 12:30 PM
    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.
    Originally posted by Ozzuk
    I don't think that's possible. Signing a new contract can not take away rights from the old contract transferred via TUPE

    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.
    • polgara
    • By polgara 10th May 18, 1:07 PM
    • 348 Posts
    • 288 Thanks
    polgara
    • #7
    • 10th May 18, 1:07 PM
    • #7
    • 10th May 18, 1:07 PM
    I don't think that's possible. Signing a new contract can not take away rights from the old contract transferred via TUPE
    Originally posted by stator
    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.
    • stator
    • By stator 10th May 18, 5:09 PM
    • 6,229 Posts
    • 4,112 Thanks
    stator
    • #8
    • 10th May 18, 5:09 PM
    • #8
    • 10th May 18, 5:09 PM
    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.
    Originally posted by polgara
    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.
    • polgara
    • By polgara 11th May 18, 4:05 PM
    • 348 Posts
    • 288 Thanks
    polgara
    • #9
    • 11th May 18, 4:05 PM
    • #9
    • 11th May 18, 4:05 PM
    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.
    • nicechap
    • By nicechap 11th May 18, 4:16 PM
    • 1,104 Posts
    • 2,353 Thanks
    nicechap
    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.
    Originally posted by stator
    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.
    Quote was right and saw into the future.
    • stator
    • By stator 11th May 18, 4:41 PM
    • 6,229 Posts
    • 4,112 Thanks
    stator
    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 nicechap
    It would only affect NHS employees who have been TUPEd, which is probably not many.

    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.
    • polgara
    • By polgara 11th May 18, 4:43 PM
    • 348 Posts
    • 288 Thanks
    polgara
    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 nicechap
    Thats not related to TUPE though
    • nicechap
    • By nicechap 11th May 18, 6:33 PM
    • 1,104 Posts
    • 2,353 Thanks
    nicechap
    Thats not related to TUPE though
    Originally posted by polgara
    Except it does, people move trusts all the time and under the deal, when you move, you can be moved onto the lesser sick pay benefits. Same applies if you get promoted, you ll get an even higher salary but lower sickness benefits. There!!!8217;s rumours the GMB are opposing it because of this change - but that!!!8217;s another subject.

    At the point of TUPE, benefits are the same, but they can be changed (subject to certain things like consultation or being informed) and then you have the choice to accept them by doing nothing or actively fighting them.

    Yawn: https://www.employmentsolicitor.com/tupe-cut-employee-benefits/
    Last edited by nicechap; 13-05-2018 at 9:09 AM.
    Quote was right and saw into the future.
    • ACG
    • By ACG 12th May 18, 6:07 PM
    • 16,833 Posts
    • 8,784 Thanks
    ACG
    Does he have payslips from when he has been ill in the past?
    Those could potentially be used.

    Contracts are not always issued, but it does not mean a contract is not in place.
    I am a Mortgage Adviser
    You should note that this site doesn't check my status as a mortgage adviser, so you need to take my word for it. This signature is here as I follow MSE's Mortgage Adviser Code of Conduct. Any posts on here are for information and discussion purposes only and shouldn't be seen as financial advice.
    • stator
    • By stator 13th May 18, 12:48 AM
    • 6,229 Posts
    • 4,112 Thanks
    stator
    Except it does, people move trusts all the time and under the deal, when you move, you can be moved onto the lesser sick pay benefits. Same applies if you get promoted, you ll get an even higher salary but lower sickness benefits. There’s rumours the GMB are opposing it because of this change - but that’s another subject.

    At the point of TUPE, benefits are the same, but they can be changed (subject to certain things like consultation or being informed) and then you have the choice to accept them by doing nothing or actively fighting them.
    Originally posted by nicechap
    Promotions are completely different since you're accepting a new job.
    TUPE conditions can only be changed for genuine business reasons. It's not just a case of consultation or new contracts. Doing nothing does not affect your TUPE rights at all.
    I believe you are wrong on all accounts
    Changing the world, one sarcastic comment at a time.
Welcome to our new Forum!

Our aim is to save you money quickly and easily. We hope you like it!

Forum Team Contact us

Live Stats

110Posts Today

1,711Users online

Martin's Twitter
  • It's the start of mini MSE's half term. In order to be the best daddy possible, Im stopping work and going off line? https://t.co/kwjvtd75YU

  • RT @shellsince1982: @MartinSLewis thanx to your email I have just saved myself £222 by taking a SIM only deal for £7.50 a month and keeping?

  • Today's Friday twitter poll: An important question, building on yesterday's important discussions: Which is the best bit of the pizza...

  • Follow Martin