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Discrimination under TUPE Reg's 2006

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Hi there,

I'm kind of acting as an unofficial legal representative for a friend of mine who is having problems at work. I study Law myself at Uni, so had the appropriate Employment Law books at hands, but if you can offer any advice that would be great.

 

My friend (Chris for example), joined company A in 2004 and in 2008, was TUPE'd over to a new company called Company B. There were no new contracts formed when he was transferred over to Company B, so under TUPE law 2006, the exisiting contract remains in place. It's now been two years since that transfer and his boss called him up the other day and said to him (it was his day off), "when you come in on friday, you won't be doing your old job anymore, you'll be dealing with the email inbox from now on". Now the previous job he did was a techincal role with a high degree of decision making, and the job he has been transfered to is basically a Admin Assistant job - so he's been de-skilled and effectively de-humanized. On his exisiting CoE which was transferred, it states what his job role is.

 

Just to clarify the situation. There are two positions which have the same level of expertise. Chris filled in one of them positions and another guy filled the other. The other guy was on £6k less than Chris so I presume this other guy had an ongoing issue with this (which Chris has told me) and challenged the owner to say it's unfair under the Equality Act that Chris was on a higher pay than him, doin the same job. So they have moved Chris to prevent a tribunal case from emerging, but they have subsequently created another problem by breaching the TUPE Act 2006 - they did not consult or receive consent from Chris in changing the T&C's of his CoE and they did this for discrimatory reasons, it wasn't financially motivated because Chris remains on the same pay.

 

Now, ok you may argue 'whats the problem, hes on the same pay', but i have first hand experience myself of being effectively demoted for no legitimate, credible business reason.( I'm 30 by the way, and ive worked for Central Goverment for 12 years, dealt with PCS representatives etc, )

 

So i am kind of being his indirect unoffocial legal representative to get this ball rolling until his has that official representation.

 

His company is not part of a TU, so he has to join one (he's joined UNITE, but apparently you can't get immediate representation until the DD has gone through?! Seems compeltely unjust if this is the case!).

I'll have to get him to send an email raising an official grievance and constructive dismissal case and that he is undertaking his new role under duress. He could well resign, but 1. that is what they have been wanting him to do since he started because of the whole pay difference issue, 2. they can't get him on anything because he's a loyal, commited hardworker who's never had a day off sick and works all the overtime there is. 3. He's got a mortgage to pay, so as we all know, its not that easy just giving up a job straight away.

 

Constructive dismissal can be submitted through court of law even if an employee remains employed. In this specfic case, the constructive dismissal is effectively related to the existing post he once fulfilled and this dismissal from this role without any credible business reason and without consultation or consent from employee (Chris).

 

So, on the Union Rep side (clearly I can't represent him), can he get union representation straight away?? Is a case only taken to court if no parties can reach an agreement? In which then an employment law solicitor will have to be sought?

 

I'm only a first year student, but i'm passionate about protecting employee rights having been bullied/discrimated myself in the past and understand how grievance procedures work.

 

Any help would be really appreciated because the clock is ticking and i'm really worried about him.

 

Thanks,

 

GG

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Oh my God - save me from 1st year law students!

 

Hi there,

I'm kind of acting as an unofficial legal representative for a friend of mine who is having problems at work. I study Law myself at Uni, so had the appropriate Employment Law books at hands, but if you can offer any advice that would be great.

 

My friend (Chris for example), joined company A in 2004 and in 2008, was TUPE'd over to a new company called Company B. There were no new contracts formed when he was transferred over to Company B, so under TUPE law 2006, the exisiting contract remains in place. Yes - but that does not mean it can't be changed. Adter two years the protections offered by TUPE are pretty much dead, and anything in the contract is fair game for variation. So this isn't a TUPE case - it's a breach of contract case. Forget TUPE - you are complicating matters.

 

It's now been two years since that transfer and his boss called him up the other day and said to him (it was his day off), "when you come in on friday, you won't be doing your old job anymore, you'll be dealing with the email inbox from now on". Now the previous job he did was a techincal role with a high degree of decision making, and the job he has been transfered to is basically a Admin Assistant job - so he's been de-skilled and effectively de-humanized. On his exisiting CoE which was transferred, it states what his job role is.

 

Just to clarify the situation. There are two positions which have the same level of expertise. Chris filled in one of them positions and another guy filled the other. The other guy was on £6k less than Chris so I presume this other guy had an ongoing issue with this (which Chris has told me) and challenged the owner to say it's unfair under the Equality Act that Chris was on a higher pay than him, doin the same job. Is Chris male or female. Because you can't make a claim of discrimination unless the comparator is the opposite gender. And the other person can't make a claim under the Equality Act at all - the operational legislation is the Act that applied when the course of conduct complained about was in operation, which predates the Equalities Act.

 

So they have moved Chris to prevent a tribunal case from emerging, but they have subsequently created another problem by breaching the TUPE Act 2006 - they did not consult or receive consent from Chris in changing the T&C's of his CoE and they did this for discrimatory reasons, it wasn't financially motivated because Chris remains on the same pay. Discrimination against Chris doesn't come into it - they may have breached contract, but they haven't discriminated.

 

Now, ok you may argue 'whats the problem, hes on the same pay', but i have first hand experience myself of being effectively demoted for no legitimate, credible business reason.( I'm 30 by the way, and ive worked for Central Goverment for 12 years, dealt with PCS representatives etc, ) Ermm - yes I agree - what is he complaining about if he's on the same pay. It has hardly solved any of the problems you have outline here is his pay is unaffected. His job description probably isn't contractual, but even if it is - it can be varied. Whether this constitutes a breach of contract is immensely more complicated if nothing else has changed, since it's hard to argue that a demotion has taken place. There is some case law that may support such an argument, but it's a fine line and depends on the exact circumstances of the change.

 

So i am kind of being his indirect unoffocial legal representative to get this ball rolling until his has that official representation.

 

His company is not part of a TU, so he has to join one (he's joined UNITE, but apparently you can't get immediate representation until the DD has gone through?! Seems compeltely unjust if this is the case!). Rubbish. It's entirely fair. Chris could have joined a union anytime. Why should he expect to sign up, not even have paid yet, and get the same rights as people who have been members for years. Anyway, this is very likely wrong. UNITE's rule book actually says that you must be a paid up member for six months before you can get representation, and you are also not entitled to representation for a pre-existing case. These are the rules for most every union too - it isn't unique to UNITE.

 

I'll have to get him to send an email raising an official grievance and constructive dismissal case Why? he has not been dismissed, and he hasn't resigned. If anything this is simple breach of contract and nothing else and that he is undertaking his new role under duress. He could well resign, I wouldn't recommend it. At the best of times less than 3% of cases of constructive dismissal win at tribunal, and the burden of proof is entirely on the employee throughout any case but 1. that is what they have been wanting him to do since he started because of the whole pay difference issue, 2. they can't get him on anything because he's a loyal, commited hardworker who's never had a day off sick and works all the overtime there is. 3. He's got a mortgage to pay, so as we all know, its not that easy just giving up a job straight away.

 

Constructive dismissal can be submitted through court of law even if an employee remains employed. In this specfic case, the constructive dismissal is effectively related to the existing post he once fulfilled and this dismissal from this role without any credible business reason and without consultation or consent from employee (Chris). True. But it is a hard case to win, and so far you haven't satisfied the requirement to attempt to resolve with the employer first (and it is still subject to the problems of burden of proof and low win rates) - and nor is there an absolute certainty that the employer has breached contractual terms. You will require more than a verbal (deniable) phone call. A lot more.

 

So, on the Union Rep side (clearly I can't represent him), can he get union representation straight away?? Highly unlikely Is a case only taken to court if no parties can reach an agreement? A case can only be claimed, never mind go to tribunal, if no agreement can be reached using the proper procedures. In which then an employment law solicitor will have to be sought? Oh I think I would definitely suggest this if there is no union representation.

 

I'm only a first year student, but i'm passionate about protecting employee rights having been bullied/discrimated myself in the past and understand how grievance procedures work.

 

Any help would be really appreciated because the clock is ticking and i'm really worried about him.

 

Thanks,

 

GG

 

You are in way over your head and without a paddle. The first thing that Chris needs is evidence - none of which he currently has! There's a lot of guessing about what has been done and why - but no evidence. So he needs to (a) clarify what changes management are proposing and why, then, if he disagrees (b) submit a grievance about the change of his job description, preferably saying that he is not agreeing to such a change and is working only under protest (not duress!), and then see what happens. More than likely, if the employer maintains his pay and benefits, and is only changing his job description, then this will result in a consultation after which, if he doesn't agree, they will enforce the change citing business reasons, and he will almost certainly have no case at all.

 

And I'm a 30+ years barrister specialing in employment law, and UNITE is one of my clients.


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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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My friend (Chris for example), joined company A in 2004 and in 2008, was TUPE'd over to a new company called Company B. There were no new contracts formed when he was transferred over to Company B, so under TUPE law 2006, the exisiting contract remains in place. It's now been two years since that transfer and his boss called him up the other day and said to him (it was his day off), "when you come in on friday, you won't be doing your old job anymore, you'll be dealing with the email inbox from now on". Now the previous job he did was a techincal role with a high degree of decision making, and the job he has been transfered to is basically a Admin Assistant job - so he's been de-skilled and effectively de-humanized. On his exisiting CoE which was transferred, it states what his job role is.

 

Just to clarify the situation. There are two positions which have the same level of expertise. Chris filled in one of them positions and another guy filled the other. The other guy was on £6k less than Chris so I presume this other guy had an ongoing issue with this (which Chris has told me) and challenged the owner to say it's unfair under the Equality Act that Chris was on a higher pay than him, doin the same job. So they have moved Chris to prevent a tribunal case from emerging, but they have subsequently created another problem by breaching the TUPE Act 2006 - they did not consult or receive consent from Chris in changing the T&C's of his CoE and they did this for discrimatory reasons, it wasn't financially motivated because Chris remains on the same pay.

 

So this role is an equivalent role to that which he was performing? The issue of TUPE is a factor in terms of a change to salary, benefits, seniority etc, but not necessarily an issue where none of these have changed. Where it is being done for an Economic, Technical or Organisational reason, the employer will always have a valid defence, but it does sound as though Chris's T&Cs have not changed, nor has his salary or seniority - just the level of job satisfaction?

Now, ok you may argue 'whats the problem, hes on the same pay', but i have first hand experience myself of being effectively demoted for no legitimate, credible business reason.( I'm 30 by the way, and ive worked for Central Goverment for 12 years, dealt with PCS representatives etc, )

 

...and whilst not rubbishing his feelings in any way, is there actually anything wrong with his current role? There can be a reasonable expectation on the part of the employer for an employee to perform 'reasonable' duties in return for wages. Have his workplace benefits changed? Does the new role make him suffer any detriment? Has his job title changed?

 

So i am kind of being his indirect unoffocial legal representative to get this ball rolling until his has that official representation.

 

His company is not part of a TU, so he has to join one (he's joined UNITE, but apparently you can't get immediate representation until the DD has gone through?! Seems compeltely unjust if this is the case!).

I'll have to get him to send an email raising an official grievance and constructive dismissal case and that he is undertaking his new role under duress. He could well resign, but 1. that is what they have been wanting him to do since he started because of the whole pay difference issue, 2. they can't get him on anything because he's a loyal, commited hardworker who's never had a day off sick and works all the overtime there is. 3. He's got a mortgage to pay, so as we all know, its not that easy just giving up a job straight away.

 

A Grievance by all means, but not a good idea to raise the subject of CD - they might just call his bluff! He should complain that his old job still exists, ask on what basis his role has been changed, and how long before he may return to his contracted position.

 

Constructive dismissal can be submitted through court of law even if an employee remains employed. In this specfic case, the constructive dismissal is effectively related to the existing post he once fulfilled and this dismissal from this role without any credible business reason and without consultation or consent from employee (Chris).

 

Not entirely sure that is true, for there has been no termination of contract on the part of the employee - Constructive Dismissal is the result of a material breach of contract by the employer, so severe that the employee has no alternative but to resign. CD is rarely a course of action to be recommended as it is a VERY tricky route, and there is around a 90% failure rate in cases pursued. It may well be a valid claim, but the employer would only have to prove that their actions were reasonable (say where the business was being restructured) for the case to fail. It could also be claimed that your although your friend was being asked to perform a lesser role, he was continuing to receive the same salary and benefits, and this would almost certainly be taken as a 'reasonable' action by the employer. Even in a successful action, damages would be limited to actual losses sustained, so unless your friend has seen his salary cut, what precisely would these be?

It may be appropriate to claim unfair constructive dismissal on the basis that he has effectively been unfairly dismissed from his contracted role, and on those grounds he simply cannot stay, but he would still need to resign. Once again though, a reorganisation might be a potentially fair reason for the change.

 

So, on the Union Rep side (clearly I can't represent him), can he get union representation straight away?? Is a case only taken to court if no parties can reach an agreement? In which then an employment law solicitor will have to be sought?

 

I'm only a first year student, but i'm passionate about protecting employee rights having been bullied/discrimated myself in the past and understand how grievance procedures work.

 

Fair enough. I have a great deal of sympathy for your friend's position, and he should indeed raise an objection if he is unhappy with the new role, but as far as I can see there has been only minimal (if any) effect on his rights, and this is negated by an organisational reason for the employer moving him. It does not seem to be bullying, and there appears to be no element of discrimination. Tread very carefully if he is relying on you for 'legal' advice, as it is not at all clear that there are any legal grounds to take action - certainly at this stage.

 

GG

 

..


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^^^

 

What she said - and I bow to superior knowledge!


Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

PLEASE HELP US TO KEEP THIS SITE RUNNING

EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

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^^^

 

What she said - and I bow to superior knowledge!

 

Not at all - we are both saying the same thing in slightly different ways. That is the porblem with the law - what it says is contained in legal books, what it does isn't. But I wouldn't disagree with anything you have said - it is just said from a slightly different perspective. I think that the common point is the one worth bearing in mind - a legal case, should one exist (and that is by no means clear) is not the way to go. There is far too high a probability of loosing (which is what any solicitor or union would also tell the OP).


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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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Hello again GG. I just replied to your post on another thread. I understand that you're passionate etc which I was at your age and still am to some extent, but have you been student for a year or since the last month or so? SarEl and Sidewinder have given you considered advice and it looks as if this case isn't cut and dried by any means.

 

Fwiw, I think the union are absolutely right and it has been like that for as long as I remember. Why should you take out car insurance for example several months after you crash the car and expect to be insured for it?

 

HB


Illegitimi non carborundum

 

 

 

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Hi Honeybee - thanks for your email. I had to laugh at your comment 'when i was your age' (im 30 not 18)- how old are you? haha.

 

SarlE - wow, where do i start?! First of all, thank you for taking the time, it is very much appreciated. I am admittedly in too deep with this situation - and I do belive it's unfair what management have done without consulting him first.

 

Ok, your point - Yes - but that does not mean it can't be changed. Adter two years the protections offered by TUPE are pretty much dead, and anything in the contract is fair game for variation. So this isn't a TUPE case - it's a breach of contract case. Forget TUPE - you are complicating matters.

Re: 'after 2 years' point you raised. Well, in a law book I read 'Employment Law: An Introduction' by Taylor & Emir (page 506) it says the following:

"It is commonly believed by employers that they are 'safe' to force through contractual changes to bring about harminisation two years or so after the TUPE transfer has taken place. In fact this is most definately not the case. TUPE specifically exists to prevent transferees from doing this."

So i am therefore confused why you mentioned the 'after two years the protections offered by TUPE are pretty much dead' when this Law book says the contrary?.......

 

Is Chris male or female. Because you can't make a claim of discrimination unless the comparator is the opposite gender. And the other person can't make a claim under the Equality Act at all - the operational legislation is the Act that applied when the course of conduct complained about was in operation, which predates the Equalities Act.

 

Chris is male. So it is the operational legislation that is being breached then?

 

 

Discrimination against Chris doesn't come into it - they may have breached contract, but they haven't discriminated.

 

So basically even though Chris's job still exists and someone else is now fulfilling that role, that is not discrimination? Why not?

 

His job description probably isn't contractual, but even if it is - it can be varied. Whether this constitutes a breach of contract is immensely more complicated if nothing else has changed, since it's hard to argue that a demotion has taken place

Why isn't it contractual? It's clearly stated in his Contract of Employment what his job role is - even after the transfer has taken place under TUPE reg's? A job evaluation could be carried out - and it's pretty evident to see that Chris was doing a technical role and now isn't. I fear they may at some point re-value the job role and say that earning that much money as an admin assistant is unjustifiable.

 

As for the union situation - Ok, i do understand your point regarding membership allowances. So what is he to do in terms of union representation?.........

 

 

Why? he has not been dismissed, and he hasn't resigned. If anything this is simple breach of contract and nothing else

 

Apologies, i have clearly misunderstood the term Constructive dismissal. I thought that because he was dismissed from this previous role without consultation, this could be deemed as construtive dismissal. So in this situation, it would be just a grievance case?

 

True. But it is a hard case to win, and so far you haven't satisfied the requirement to attempt to resolve with the employer first (and it is still subject to the problems of burden of proof and low win rates) - and nor is there an absolute certainty that the employer has breached contractual terms. You will require more than a verbal (deniable) phone call. A lot more.

 

 

How can Chris prove that certainty that contractual terms have been breached? When Chris received the phonecall, shortly afterwards, he sent an email to the CE, MD and his immediate Manager explaining the phonecall, and that he wasn't happy with it, and that his existing Contract of Employment states he was employed as a 'Logistics Controller' and not as an admin assistant. He has had no response from that email, or indeed even a further email that Chris sent seeking clarification as to why another person has taken over his role (this case i feel is discriminatory because it wasn't a financial decision to move Chris, as Chris was replaced with someone else). How can he get his manager to confirm what was said on an email and the legitimate business reasons for that decision? Is he entitled to, by law, to receive a valid and credible explanation?

 

"The first thing that Chris needs is evidence - none of which he currently has! There's a lot of guessing about what has been done and why - but no evidence. So he needs to (a) clarify what changes management are proposing and why, then, if he disagrees (b) submit a grievance about the change of his job description, preferably saying that he is not agreeing to such a change and is working only under protest (not duress!), and then see what happens. More than likely, if the employer maintains his pay and benefits, and is only changing his job description, then this will result in a consultation after which, if he doesn't agree, they will enforce the change citing business reasons, and he will almost certainly have no case at all.

 

Evidence - well, he has had nothing back from the management explaining their business decision to move him - absolutely nothing atall. The main owner of the company is on holiday for a week (how appropriate) and the other senior managers haven't responded in his absence. There's no proposals, as the proposals have alread been forced through. "citing business reasons", how can they justify the move which has taken place? For what reason? As it is not financially motivated (although i suspect at some point down the line, they will say that Chris is on too much money for an admin assistant and subsequently change it................for all Chris knows they may be already planning this in this month's wages!). There is no credible reason to move chris, other than to satisfy the other logistic controller's gripe about the fact that Chris was on more money than him.

 

Just to clarify - TUPE law does apply, irrespective of how long ago the transfer took place...

 

Chris is to therefore submit a grievance for a breach of contract and is only working under protest and will seek legal representation, is this the way forward then? Its such a real shame that he can't get union representation to present him in any consultations that may arise because I don't think his managers are aware of the TUPE reg's and how this applies to Chris.

 

I am completely aware that you have the best expertise there is in employment law, and I hope you won't take offence to the arguments i have outlined - im just slightly confused by what is being advised and what is written down in a Law text book. :D

 

Thank you so much once again!!!

 

Emma

 

 

 

 

 

 

 

 

 

 

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Sidewinder - thanks so much for taking the time to respond, i am very grateful!!

 

In response to your questions raised:

 

So this role is an equivalent role to that which he was performing? The issue of TUPE is a factor in terms of a change to salary, benefits, seniority etc, but not necessarily an issue where none of these have changed. Where it is being done for an Economic, Technical or Organisational reason, the employer will always have a valid defence, but it does sound as though Chris's T&Cs have not changed, nor has his salary or seniority - just the level of job satisfaction?

The job role he has been changed to is not equivalent to his previous one. His previous job was more technical and better paid than the admin role he is doing now. The TUPE reg's state from Taylor & Emir:505 -

 

"[...] it is not only express terms of the contract which transfer with employees (hours, pay, holiday entitlement, job title, etc) but also generally job descriptions, notice periods, bonus schemes, discretionary rights, benefits etc [...]"

 

This clearly states that under TUPE reg's, his job title and description should remain in place after the transfer has taken place, AND, are even in place a number of years down the road (pg 506, 2nd para). The seniority HAS changed. The job he did do (Logisitcs Controller) was a senior position of which he on a daily basis made regular decisions that an Admin Assistant does NOT have the authority to do (of which the admin assistant job is where he has been forced to now).

 

and whilst not rubbishing his feelings in any way, is there actually anything wrong with his current role? There can be a reasonable expectation on the part of the employer for an employee to perform 'reasonable' duties in return for wages. Have his workplace benefits changed? Does the new role make him suffer any detriment? Has his job title changed?

His current role is of an Admin Assistant level - there is no seniority within this position and he is basically dealing with incoming and outgoing emails all day (general queries). His job role was to allocate bookings to drivers, resolve any queries to do with bookings, and make decisions that an admin assistant couldn't do. Now this is a very reputible company dealing with VIPs from MD's to multi-national companies and even other high profile clients who are in the media, so it's a role which is of a senior position because you are dealing with an array of high profile people. I know and he feels that when you are removed from a position like this, to a lower grade (it is demotion), then it is undermining that person's position within the workplace. The manager made a decision to move him for what reason he doesn't know as the management hasn't provided a credible reason via email yet. He was committed, loyal, never answered anyone back, always worked over time - the issue is CLEARLY to do with pay, because the other controller had a massive issue with being paid alot less than Chris - but why should Chris take the flack?...... Yes, he is on the same pay - but it's a matter of principle. Having a job which is highly rewarding/making regular business decisions/dealing with clients who are VIP to basically a person who is dealing with emails coming in and out of an inbox all day (which subsequently is no where near as busy as the Controller role he had) making no decisions, and undertaking a role which is very robotic in nature thus consequently resulting in a demotivated, undervalued, dehumanized and unhappy employee (Weber and Herzburg theories apply). And this is what happens because i have been in the same boat as him and this is what an employee within an organisation feels when they have been mistreated/demoted.

 

A Grievance by all means, but not a good idea to raise the subject of CD - they might just call his bluff! He should complain that his old job still exists, ask on what basis his role has been changed, and how long before he may return to his contracted position.

 

Spot on - you're right. I mentioned CD because i thought that he was affectively dismissed from his previous role, you know.....demoted. I think he need to get a copy of the company handbook, but my concern is because it's a private ltd company run by a family, they won't have a company guide book in place stating what the roles are within the company and their respective duties.

 

It could also be claimed that your although your friend was being asked to perform a lesser role, he was continuing to receive the same salary and benefits, and this would almost certainly be taken as a 'reasonable' action by the employer. Even in a successful action, damages would be limited to actual losses sustained, so unless your friend has seen his salary cut, what precisely would these be?

 

As far as he is aware (upto now, because there has been no explanation/consultation from management), he remains on the same pay, but i have a very strong gut feeling (aswell as he), that they will somepoint down the line say to Chris 'listen, you're on too much money for an Admin Assistant' and subsequently reduce his salary. This is what they are hoping to do because the other admin assistants are on about £13k a year, and my friend's salary is nearly double that.

 

It may be appropriate to claim unfair constructive dismissal on the basis that he has effectively been unfairly dismissed from his contracted role, and on those grounds he simply cannot stay, but he would still need to resign. Once again though, a reorganisation might be a potentially fair reason for the change.

 

Yes, i've pointed out to him that he'd need to resign to raise a case, he is aware of that. There has been not re-organisational changes that have occured in the business - just Chris's role. And the fact that someone else has taken over Chris's role just goes to show the management decision made was a personal one. I am being completely honest here - Chris is the most loyal, committed, hard-working and has incredibly work ethics and yet it feels like he's been victimized for some reason - he doesnt deserve it.

 

Fair enough. I have a great deal of sympathy for your friend's position, and he should indeed raise an objection if he is unhappy with the new role, but as far as I can see there has been only minimal (if any) effect on his rights, and this is negated by an organisational reason for the employer moving him. It does not seem to be bullying, and there appears to be no element of discrimination. Tread very carefully if he is relying on you for 'legal' advice, as it is not at all clear that there are any legal grounds to take action - certainly at this stage.

RE: the rights issue. He's objecting to the change in his job role, which i can completely understand because that is what his exisiting contract states. He has effectively been demoted without any consulation or consent from him, so I can understand how he feels 'screwed over' (excuse the term). It will be interesting to see what credible reasons the management present for moving/demoting chris to the position he is in now. I can't stress to him enough that he needs to get in writing that if he can't revert back to his old job, then the salary must remain the same and a new contract drawn up perhaps?.... I really need to stress that to him - to get management to agree all this on paper, otherwise they'll reduce his pay and he'll be screwed basically. I want him to send this email citing the reasons for his objection and the breach in TUPE reg's and that a consultation must take place to discuss the business need for the job role change etc, but what if they don't agree to it?..... He hasn't got any trade union representation?! :(

 

I am really very grateful for your help, i really am because i'd be lost without your support!

 

Emma

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Hi Honeybee - thanks for your email. I had to laugh at your comment 'when i was your age' (im 30 not 18-)- how old are you? haha.

 

100+, Emma :). Couldn't possibly say.

 

You're very kind to try and help Chris, but I'm at a loss to understand why you think a union he never thought to be a member of should help him now, sorry. I think you should rule out that avenue.

 

SarEl and Sidewinder are giving sterling advice and I hope you get somewhere, but at my vast age :) I know it's a tough old world out there and 'rights' don't always come into it. I wish they did.

 

HB x


Illegitimi non carborundum

 

 

 

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OMG - where do I start? This is a forum, not a law lecture!

 

Re: 'after 2 years' point you raised. Well, in a law book I read 'Employment Law: An Introduction' by Taylor & Emir (page 506) it says the following:

 

"It is commonly believed by employers that they are 'safe' to force through contractual changes to bring about harminisation two years or so after the TUPE transfer has taken place. In fact this is most definately not the case. TUPE specifically exists to prevent transferees from doing this."

 

So i am therefore confused why you mentioned the 'after two years the protections offered by TUPE are pretty much dead' when this Law book says the contrary?.......

 

It certainly is commonly belived by employers - because in 99.9% of cases it is true by 12 - 18 months! Don't believe everything you read in a law book - judges don't read them!It is actually entirely possible to begin to make substantial changes to all sorts of terms and conditions the day after the TUPE!!! There are lots of reasons that they can do this and very legally, most often under ETO reasons. By two years even a sneeze would be classed under ETO :-)

 

 

Chris is male. So it is the operational legislation that is being breached then? If Chris is male and the other person (the one claiming equal pay) is male - then no unlawful discrimination has ever taken place. It is lawful to discriminate provided that it is not based on sex, race etc.....! So if I have two male employees, I can discriminate against one of them! Bit simple, but you get the idea. There is no legislation that says that two men must be paid the same as each other (or two women, for that matter).

 

 

So basically even though Chris's job still exists and someone else is now fulfilling that role, that is not discrimination? Why not? Because the other person is male!But even if they weren't, this doesn't make it discrimination. Discrimination is treating someone differently based purely or substantially on there relevant attribute - Chris isn't being treated like this because he is male.

 

 

Why isn't it contractual? It's clearly stated in his Contract of Employment what his job role is - even after the transfer has taken place under TUPE reg's? A job evaluation could be carried out - and it's pretty evident to see that Chris was doing a technical role and now isn't. I fear they may at some point re-value the job role and say that earning that much money as an admin assistant is unjustifiable. They haven't changed his job role, they have changed his duties. That's an entiely different thing. He's still called the same thing and paid the same wage, so he still has the same job role - he is just being asked to amend his duties. A job description (the list of duties) is rarely contractual because employers want to be able to amend them without facing breach of contract caims every time they ask someone to do something slightly different from what is in their JD. So if he isn't called an admin assistant they are probably not on very shaky grounds - and if they re-evaluate the job in the future, well I am afraid that is a problem to deal with when they do, not if they do.

 

As for the union situation - Ok, i do understand your point regarding membership allowances. So what is he to do in terms of union representation?......... Well he can ask - but if they apply the rule book determination, I am afraid it is a lesson learned - you don't join a union when you have problems, but in case you have problems. He is otherwise entitled to be accompanied by a work colleague - that's all the law allows.

 

 

Apologies, i have clearly misunderstood the term Constructive dismissal. I thought that because he was dismissed from this previous role without consultation, this could be deemed as construtive dismissal. So in this situation, it would be just a grievance case?

To date you have not demonstrated that he has been dismissed from anything. He hasn't been dismissed from his job, certainly - it would appear that all that has happened is his duties have been changed (but nothing else). You would have to evidence that he had incurred a serious breach of contract, and I just don't see it right now.

 

How can Chris prove that certainty that contractual terms have been breached? It may not have been! When Chris received the phonecall, shortly afterwards, he sent an email to the CE, MD and his immediate Manager explaining the phonecall, and that he wasn't happy with it, and that his existing Contract of Employment states he was employed as a 'Logistics Controller' and not as an admin assistant. He has had no response from that email, or indeed even a further email that Chris sent seeking clarification as to why another person has taken over his role So - to summate. The sum total of the "evidence" is one e-mail from him saying this had happened? Hmm, not very substantial, is it? Might be a good idea to get some replies and see what they say? (this case i feel is discriminatory because it wasn't a financial decision to move Chris, as Chris was replaced with someone else). See above - I am failing to see the discrimination anyway, but what form of unlawful discrimination was it - age, sex,.... How can he get his manager to confirm what was said on an email and the legitimate business reasons for that decision? I generally ask :-) Is he entitled to, by law, to receive a valid and credible explanation? Depends what you mean. He is entitled to raise a grievance and to have it heard. Whether he agrees that the reason given is valid or credible is another matter - the employer only has to provide a reason which is lawful.

 

 

Evidence - well, he has had nothing back from the management explaining their business decision to move him - absolutely nothing atall. So you wait - or ask again - or submit a grievance The main owner of the company is on holiday for a week (how appropriate) and the other senior managers haven't responded in his absence. There's no proposals, as the proposals have alread been forced through. "citing business reasons", how can they justify the move which has taken place? Well, if this had to go to a tribunal (and I am still not recommending it yet) then that would be up to the employer to explain! But if they can provide a good enough business reason then it will generally be accepted - tribunals do not like second-guessing the employers right to deploy their own staff. For what reason? As it is not financially motivated (although i suspect at some point down the line, they will say that Chris is on too much money for an admin assistant and subsequently change it................for all Chris knows they may be already planning this in this month's wages!).Now you are getting melodramatic. Law isn't based on guesses, it's based on facts. To change his salary they would have to consult / make redundant/ or whatever. I can't comment on what hasn't happened. There is no credible reason to move chris, in your opinion / in his opinion - opinions hold no weight in law other than to satisfy the other logistic controller's gripe about the fact that Chris was on more money than him. And still is! And until he isn't there isn't much he can do! I don't think you are grasping reality. Another way of doing this - and legally - at this stage would have been to keep two logistics controllers doing the same thing and reduce Chris's salary. It easy to do and TUPE wouldn't protect him as this happens all the time under ETO reasons.

 

Just to clarify - TUPE law does apply, irrespective of how long ago the transfer took place... No. TUPE applies only to the extent that things cannot be unilaterally imposed - but they can be imposed and after this length of time there is no way that a tribunal would stop the employer from changing a job description - or a salary. But so far I am not convinced that they have imposed anything that they couldn't lawfully amend anyway - you certainly haven't proven a case so far.

 

Chris is to therefore submit a grievance for a breach of contract and is only working under protest and will seek legal representation, is this the way forward then? No - Chris is submitting a grievance about the change of his job description. He is working under protest. You haven't proven a breach of contract and you certainly do not want to be throwing around threats about legal representation Things could get a lot worse if you do - an employer can always easily find a good and lawful reason to dismiss, no matter how hard you think it may be! And he hasn't got any legal representation - and may not get any. There is no legal aid for such cases, so it's pay the bill or no win no fee (who may refuse to take it) Its such a real shame that he can't get union representation to present him in any consultations that may arise because I don't think his managers are aware of the TUPE reg's and how this applies to Chris. Please don't take this te wrong way - but I suspect they are far more aware than you are!

 

I am completely aware that you have the best expertise there is in employment law, and I hope you won't take offence to the arguments i have outlined - im just slightly confused by what is being advised and what is written down in a Law text book. :D Law text books tell you a base position. But the practice of employment law is one of the most difficult because it is interpreting human relations in a scenario where the employers right to run their business is inviolable. An employer must conform to the law, but that does not mean that the law will intervene if they do not do so, and nor does it mean that all the law is absolute. You canot say "I will not employ you because you are black" - but you can recruit staff based on any method you like, and if you are not stupid enough to say something like this it is actually awfully easy to discriminate! TUPE cannot protect employees for ever, in the same way, if an employer can show that they have a good reason to make a change - it often doesn't even protect them in the short term.

 

Thank you so much once again!!!

 

Emma

 

I think HB was suggesting that we are both a little past 30! She's right. On both counts. You are letting your passion run past the facts. You can't let that happen in law.

 

 

 

 

 

 

 

 

 

 


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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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I think the whole point is GG that much of what is written about TUPE is a matter of interpretation. It is a fairly comprehensive piece of legistaltion in theory but in practice, much can only be interpreted and case law formed, by an Employment Tribunal, and the vital three letter getout for the employer is ETO. Whilst TUPE most certainly does entitle the employee to protection from changes to contract or unfair dismissal where the reason is due to the transfer itself, it does (and indeed has to, for otherwise no business would ever wish to acquire another and keep on all of the staff, misaligned pay scales, top heavy management...) permit changes where the employer can demonstrate clear ETO reasons for making the change.

 

TUPE very carefully does not specify a time period after which an employer may be free from the constraints of not being allowed to change T&Cs. Does that mean it is forever? No - the legal opinion is that there should come a time when it may be considered that TUPE no longer binds the employer, but that should not be a pre-determined period. It is therefore for consideration on a case by case basis and ultimately for a Tribunal to decide whether an employer's actions are fair in those circumstances.

 

The top and the bottom here is that 1. The employer should have consulted to a greater extent with Chris, but that the failure to do so does not necessarily represent an act which is actionable unless Chris suffers a detriment. 2. Although Chris may indeed have been discriminated against, this has not occurred in the legal sense - you would have to PROVE that the employer's actions were motivated by Race, Sex, Age, Sexual Orientation, Religion or Disability. In what you have said so far, the employer's actions may easily be claimed by him to be solely due to the need to have a competent member of staff doing the job - an Organisational change in the interests of running his business.

 

At this stage it leaves Chris with the option of either going through a formal Grievance process, or to resign and try to claim Constructive Dismissal. If the former, then he may have his mind put at rest or be able to negotiate a return to his former role, and at the very least he will be able to express his concerns and unhappiness to the employer. If the latter course of action was to be taken, he would be out of work and facing a nigh on impossible task in having to prove that he had no option but to resign, and that his employer's actions were unlawful.

 

 

And I'm well past 30 too!


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SarEl, I wouldn't dream of mentioning your age, I only meant mine. But if you have 30 year's experience in employment law, I guess you must be over 40 :).

 

GG, I hope this is helping you.

 

HB


Illegitimi non carborundum

 

 

 

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before anybody decides to go down the employment tribunal route, constructive dismisal etc, with out the relevant representation,

might i sugest getting a book for £30 called

 

selwyns law on employment 2010

i consider it the dogs bo^^*^ks on employment law and highly recomended

 

i must agree with sarl on this

 

less than 50 % of employment claims are upheld and a three stage grievance proceedure needs to be under taken before you even consider an employment tribunal claim

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before anybody decides to go down the employment tribunal route, constructive dismisal etc, with out the relevant representation,

might i sugest getting a book for £30 called

 

selwyns law on employment 2010

i consider it the dogs bo^^*^ks on employment law and highly recomended

 

i must agree with sarl on this

 

less than 50 % of employment claims are upheld and a three stage grievance proceedure needs to be under taken before you even consider an employment tribunal claim

 

 

It would appear the book is a year out of date! So perhaps not all that good. The statutory discipinary and grievance procedure was repealed in April 2009 - since that date you do not have to use any grievance procedure or appeal procedure in cases of unfair dismissal before making a tribunal claim, although it may adversely impact on any award you would get if you do not do so. However, this ism't a case of unfair dismissal - if it is a case of anything at all - it is constructive unfair dismissal, and in such cases there is a requirement to use the employers grievance procedure (which does not have to have three stages and never has had to have three stages).

 

The figure quoted here of less than 50% is actually for unfair dismissal cases - constructive dismissal, as I said previously, is less than 3%. One might be willing to take the risk of long term unemployment for "less than 50%" - at 3% it is a very different proposition, and if a grievance cannot resolve it, the better part of valour and paying the bills might be to look for another job.


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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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SarEl, I wouldn't dream of mentioning your age, I only meant mine. But if you have 30 year's experience in employment law, I guess you must be over 40 :).

 

GG, I hope this is helping you.

 

HB

 

 

I was 21 again only this year!


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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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JUST UPDATED MY SELWYNS

 

16 EDITION

 

AUGUST 2010:wink:

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JUST UPDATED MY SELWYNS

 

16 EDITION

 

AUGUST 2010:wink:

 

Yeah - but notwithstanding that, the information quoted is still wrong!


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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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may i ask why with the greeaest respect as i use it all the time and i dont want to end up with egg on my face

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I have already explained that in post #14.


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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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I was 21 again only this year!

 

Me too! Maybe we could have a joint 21st next year? :grouphug:

 

HB


Illegitimi non carborundum

 

 

 

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Me too! Maybe we could have a joint 21st next year? :grouphug:

 

HB

 

I am thinking of being 22 next year - it was a better year!


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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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My friend (Chris for example), joined company A in 2004 and in 2008, was TUPE'd over to a new company called Company B. There were no new contracts formed when he was transferred over to Company B, so under TUPE law 2006, the exisiting contract remains in place. Yes - but that does not mean it can't be changed. Adter two years the protections offered by TUPE are pretty much dead, and anything in the contract is fair game for variation. So this isn't a TUPE case - it's a breach of contract case. Forget TUPE - you are complicating matters.

 

 

SAEL

 

IN YOUR STATEMENT ABOVE, YOU STATE THE TUPE REGULATIONS BEING ONLY VALID FOR TWO YEARS AND THE NEW EMPLOYER CAN VARY THE T&C OF EMPLOYMENT AFTER THIS TIME

 

IVE GONE OVER TUPE AGAIN AND CANT FIND THIS AMMENDMENT/CLAUSE IN THE REGULATION WOULD YOU BE SO KIND AS TO POST A LINK TO WHERE IT STATES THIS AS ITS VERY IMPORTANT

 

MANY THANKS

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I did not say that TUPE regulations are only vaild for two years. Please do not misquote me and please DO NOT SHOUT AT ME.

 

What I said was that an employer can, and many do, vary terms and conditions after a TUPE - at any point from the first day after the TUPE. TUPE does not ever prevent an employer from varying terms and conditions and the employer can vary them by following the usual procedures which apply in any case, TUPE or not. However, immediately after an employee is transferred, the reasons why an employer may change terms and conditions tends to be much more rigidly enforced by the courts provided that the employer fails to convince them of an overwhelming case for the change. These reasons must fall within the ETO rules, and must be justified to a court - although it is actually very rare for a court to disagree - but not unheard of.

 

However, in practice, courts become much more "relaxed" about enforcement of TUPE provisions after 12 - 18 months - hence, what I said was that TUPE protections are "pretty much dead by two years". I meant that the chances of getting a court to rule that an employer cannot change terms and conditions provided they make the variation through the correct process are exceedingly slim. Pretty much negligible. Because at that stage the courts tend towards the view that the employment relationship is settled and employers are entitled, within the normal course of events and after following due process, to run their businesses as they like. Obviously, under any circumstances, TUPE or not, changes to terms and conditions must be justied on the basis of ETO reasons in effect - although this language is not generally applied in the wider legislation, it is still the most effective test of justification.

 

So I did not say that the regulations are only valid for two years - I said that after two years the courts are extremely loathe to enforce them. To all intents and purposes TUPE'd employees are treated, by the courts, in pretty much the same way as any employee. This is the law in practice - not the written word. So each case would have to be examined on a case by case basis.

 

I should also point out that my advice was not limited to this one quotation - I gave detailed advice based on a specific set of circumstances in which, in any case, there was no evidence that terms and conditions had been varied - only the job role; and in which the question was "was this discrimination on the grounds of TUPE" - which in my view would be almost impossible to make as a case at this stage.


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I am a barrister specialising in employment law, and only represent employees. My advice on employment issues is advice - not legal opinion - and is based only on the facts you provide. If you want an accurate assessment of your case and prospects, you should get legal opinion from a lawyer - not a public forum. Anything I tell you is for guidance only, and is based on my experience of the law in the context of what details you provide.

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thanks for the reply

 

i was not being rude but asking for specific advice for which you are well qualified to give

 

we all have to learn to gain knowledge for which cag is all about

 

your knowledge can help more peole who may not get a personal service from you

 

i was paying you a complimant, not being arogant

 

i am studying employment law at the moment

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