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Report a problem with this page. What were you doing? You should note that your new employer still has to get agreement for these changes even if they are positive changes. They will do this by either getting agreement from the employees or discussing with employee or Trade Union representatives. There are reasons why your new employer can change your terms and conditions after the TUPE transfer though.
In addition, your new employer can also make redundancies in the workforce because of ETO reasons, but they must follow the correct consultation periods and notice periods. Also ask if we can deal with your case on a No Win, No Fee basis.
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It does not store any personal data. Functional Functional. TUPE provides certain protections to employees where the business that they work for transfers either in whole or in part to a new owner. It also applies where a service provision is transferred, for example, where it is outsourced, in-sourced or re-tendered except in certain specific circumstances.
In essence, the employees associated with the transferring business or service, transfer as well and the new owner becomes their employer at the time of transfer, stepping into the shoes of their original employer.
The period of protection afforded by TUPE is indefinite. That said, it may be less likely that an employee will be able to claim that the change was made as a result of the transfer the longer the period of time since the transfer. TUPE applies to all organisations, regardless of the size of their workforce, turnover, profits and so on, if the part of the business that is being transferred is UK-based. For example, an international business which has its Head Office in New York, will have to comply with TUPE in respect of its employees who work at one of its UK-based factories if it transfers that factory to a new owner.
In addition, any company pension rights of the transferring employees will be protected although there is no obligation on the incoming employer to carry on the same pension.
No, a transferring employee can choose not to transfer to the incoming employer. This has the same effect as a resignation in that the relevant employee will not be able to claim unfair dismissal or seek redundancy pay in relation to the resignation. If an employee does resign as a result of the transfer, their employment will terminate on the date of transfer, provided that they have notified the outgoing employer or incoming employer.
This could potentially lead to bad feeling between the existing employees and the new employees where, for example, the new employees are entitled to more holiday or extra benefits. Once the transfer has taken place, any transferring employees should be provided with an amended written statement of employment which states the name of the incoming employer and confirms that their terms and conditions of employment have remained the same.
By way of example, relocating the business following the transfer is likely to be classed as an ETO reason although employers should be aware that each case will depend on the facts and tribunals expect the change to be for a true ETO reason — they will not interpret this lightly. It can therefore be quite an onerous task for an organisation to establish that any change is for an ETO reason; often, a counterargument can be put that the change was solely or principally due to the transfer.
Ideally, the incoming employer will be able to show that the change made would have occurred whether the transfer had taken place or not and that all employees were affected by the change, not just the transferring employees. It is important that the reason for any changes be separated from the transfer as far as possible and that appropriate evidence can be provided.
As such, recording management discussions and decision-making in writing is crucial here. New employers should review the contracts of employment of the transferring employees as changes to their terms and conditions may be permissible under their contract terms, such as where there is a mobility clause.
Written records should document the discussion with the employee and any consent should be given in writing and kept on file. Collective agreements which have transferred across to the incoming employer can be renegotiated, provided that 12 months or more has passed since the transfer and that the changes are not detrimental to the employees in question.
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