TUPE, Can't increase holiday entitlement

[darrentoms]

Hi All

 

I have a client who moved from one company to another under TUPE.

 

She has just found out that she could get more days holiday if she was on the new company contract.

 

She asked if it was possible to sign a new company contract and was advised this is no longer possible. (been about 3 years since the move)

 

She has also been told she is on the OLD contract and that any increase in holiday entitlement is now frozen. (Had she stayed at old company she would now have 24 days holiday but she is frozen on 22 days with no chance of this EVER going up)

 

Does anyone have any advise on whether this is allowed and what actions my client is able to take.

 

It's in the banking sector

Thanks

Darren

[BeauBrummie]

We need a bit more info,

 

I am assuming that 22 days is exclusive of Bank Holidays - yes?

 

Does your client work Full Time ?

 

If not how many hours per day over how many days per week.

 

Beau

[darrentoms]

Hi

 

Client works 5 days a week from 9am - 1pm.

 

Holidays are 22 days to take when she likes plus Bank Hols. (if she works these she can take double pay or day in lieu)

 

If she has stayed in old company her holiday entitlement would have gone up after 5 years service from 22 days to 24 days. She moved over to new company but stayed on the old contract (didn't sign new one with new employer).

 

Now she is told can't sign new contract and that her holiday entitlement is frozen forever.

 

If need more info please let me know and thanks for your help

[BeauBrummie]

On the face of it, this could be descriminatory.

 

The Regulations have the effect that:

Employees employed by the previous employer when the undertaking changes hands automatically become employees of the new employer on the same terms and conditions. It is as if their contracts of employment had originally been made with the new employer. Thus employees’ continuity of employment is preserved, as are their terms and conditions of employment under their contracts of employment (except for certain occupational pension rights).

 

But I would first look to the current Terms & Conditions of Employment.

 

Was there any variation of terms implemented at the time of the TUPE.

 

I am leaning towards the fact that if the other employees have received an increase in entitlement in the last 3 years (Other than Statutory Rights) then this could be viewed as discriminating against the TUPE'd employee.

 

If your client has been told that there will be no more entitlement EVER, that could also be deemed as descriminatory (does she have this in writing)?

 

Does she do the same job as someone who was not TUPE'd and already receives more holiday entitlement.

 

Beau

[darrentoms]

Other workers have not had an increase during her time there other than under the terms based on length of service.

 

Staff working in the new company with same length of service doing same role should have 25 days holiday (after 5 years service).

 

She has been advised by HR that she cannot sign a new contract (which was offered during the actual original transfer) and must remain on her old contract.

 

At no point was she advised there was a time limit on signing nor the fact her TUPE holiday entitlement would be frozen. (at 22 days)

 

The challenge of looking at current T&C of employment is she doesn't know whether to look at old, new or a variation of both company policies. (she doesn't have a copy of the contract to hand and HR are not helping her)

[mariefab]

Client works 5 days a week from 9am - 1pm.

 

Holidays are 22 days to take when she likes plus Bank Hols. (if she works these she can take double pay or day in lieu)

 

The statutory minimum paid holiday entitlement is 5.6 weeks.

So, even if she worked all 8 bank holidays and was paid double time for them she would still be entitled to a minimum of 28 days paid holiday.

[BeauBrummie]

Other workers have not had an increase during her time there other than under the terms based on length of service.

 

Staff working in the new company with same length of service doing same role should have 25 days holiday (after 5 years service).

 

She has been advised by HR that she cannot sign a new contract (which was offered during the actual original transfer) and must remain on her old contract.

 

At no point was she advised there was a time limit on signing nor the fact her TUPE holiday entitlement would be frozen. (at 22 days)

 

The challenge of looking at current T&C of employment is she doesn't know whether to look at old, new or a variation of both company policies. (she doesn't have a copy of the contract to hand and HR are not helping her)

 

So is her length of continuous service 5 years yet?

 

Custom & Practice would come into play regarding the signing of the new contract - in other words it has been accepted by the Employer because that is what the employee has been doing for a considerable length of time. So the fact that a new contract has not been signed in my view is immaterial.

 

What I am trying to establish is the if there is a case where the TUPE'd employee is suffering compared to the un-TUPE'd employee.

 

That is where you would have grounds for a grievance. The fact that she would be better off with her old company would not come into play in this instance.

 

Beau

[darrentoms]

She started work in old company in 2002, TUPE'd to new company in Dec 2006 and has worked for new company since then (under her old contract).

 

What she can't understand, aside from the holiday issue, is why she can't sign a contract NOW when she was able to a few years back...(who'd have thought law would be so complex hey )

[BeauBrummie]

She started work in old company in 2002, TUPE'd to new company in Dec 2006 and has worked for new company since then (under her old contract).

 

What she can't understand, aside from the holiday issue, is why she can't sign a contract NOW when she was able to a few years back...(who'd have thought law would be so complex hey )

 

Ok so she has more than 7 years continuous employment so would qualify by right to be paid the same entitlement as the non TUPE'd employees.

 

This is grounds for the grievance - she should be treated the same as all other employees in the company doing the same job with similar lengths of service.

 

Now, in the grievance letter she could also state and ask for her current T&Cs and see what they say- you never know the employer may even realise the error of their ways.

 

Beau