TUPE question RE: Change to annual leave.

[Bombaymix]

Hi. I'm hoping one of you could give me a bit of advise.

 

We transferred to a new employer back in July 2009 and things have run quiet smoothly. Ts and Cs from our old contracts were honoured and we've been happy with the transfer.

 

A few days ago, quiet a few of us got letters stating that our annual leave entitlement had been reviewed and our new entitlement (starting April 1st) would be 8.4 days a year less.

 

Our current entitlement is 28 days x 12 hour shifts.

 

Our new entitlement will be 19.6 days x 12 hour shifts.

 

Somebody has printed off some literature stating that 19.6 days a year is correct for the shifts we work. (4 12 hour shifts on, 4 days off) the information was printed off from direct.gov.

 

My questions.

 

The letter was received just before the 1st of march, we've been told that the letters were rushed out to ensure we all got the correct notice (obviously 1 calendar month). I assumed that anything to do with TUPE was 90 days notice??

 

I have a copy of my original contract with my previous employer clearly stating 24 days a year annual leave (this increased to 28 days early in my employment with my previous employer) I also have supporting wage slips from my previous employer which clearly shows I was receiving 28 days annual leave x 12 hour shifts. I've also received 28 days x 12 hour shifts for the last 2 1/2 years with my new employer.

 

Questions were asked RE: holiday entitlement when the new employer first took over. I provided them with my original contract and they reinstated my entitlement back to 28 days per year x 12 hour shifts.

 

Hope it all makes sense! I have forwarded a copy of my original contract to my employer and await their response!

 

Do I have a leg to stand on? Or am I chasing the £800+ a year that I stand to lose without a hope in hell?

 

Thanks in advance

[becky2585]

The basic position is that they cannot enforce this change on you without your consent. The unfortunate thing is that, if they do, your only real avenue is to resign and claim constructive dismissal.

 

A formal written grievance may be the only way to go - collectively, if there are several employees affected.

[Bombaymix]

Thanks Becky!

 

I'm sitting tight at the moment. Will email our 'finance manager' in the morning and ask her if she has considered my previous contractual evidence and ask them for a final response on the matter before deciding what to do next.

[mariefab]

I suggest that you ask (in writing) for the reasons the variation of contract asking for a written response.

 

I realise that it's kind of obvious that they're simply seeking to save money, but if their written response comes back stating that the main reason is to harmonise terms and conditions of the workforce you would have a potential claim that the detriment is connected to the transfer.

[Bombaymix]

Excellent Marie! Thankyou both very much!

 

Just found it disgusting how they went about it...

 

I know in the workplace, a lot of the time we are considered as 'just numbers' and certainly not wanting to blow my own trumpet, I go above and beyond here and seem to be constantly undervalued. Longest serving member of this team now and have voluntarily taken on so many different additional duties to try and justify our positions.

 

Seems the more you do, the less you're thought of.

 

Thanks again for some great advise. I'll keep you updated x

[Bombaymix]

Ok.

 

Sorry I haven't checked back sooner.

 

Latest news...

 

I raised an official grievance against my employer. They took into account everything I said and reinstated the full holiday entitlement.

 

It appears now that they've given the correct amount o notice and have invited myself and my colleague to a consultation meeting tomorrow.

 

I have no idea what to expect at this meeting. The only thing I've been told is the employer can only vary our terms and conditions if we agree to it... Anybody know if this is correct? Anybody been through the same sort of consultation meeting?

 

I'm not nervous, just wish I knew what to expect tomorrow!

[Jimbob1987]

U will be consulted and maybe offered a chance to counter offer a middle ground. However your employer can put the new changes in place, and all u can really do is resign and claim constructive dismissal. Very difficult to win especially if your employer hits out with its reduce holidays or redundancy u will in my opinion lose ur caseJ.

 

You would Also have to resign ASAP after the change otherwise you will begin the process of acceptance by continuing to work, this will give you a better chance of claim, but as I said it will b difficult in the first place.

[Bombaymix]

Thanks Jimbob. Sounds like we are screwed then, and have to like it or lump it?

 

Resigning isn't an option. I like my job - as much as it seems that we are under valued by the company who pay us (that is all our actual employer does - pay us)

 

Ok, will update this thread after the meeting...

[Bombaymix]

An update on this. Ongoing saga...

 

We had our first consultation meeting in June and were told if we could provided contractual evidence from our previous employers then our holiday would be reinstated with no problems. I advised the operations manager that I had wage slips and a copy of my original (hand written and signed) new starter application and he said this would be sufficient! I promptly made copies and provided them to him.

 

We didn't hear anything more after the meeting and assumed that the information provided was enough to reinstate what we've always had....

 

Letter received last week saying that they've been in touch with our old company and there is no evidence to suggest that we were on 28 days x 12 hour shifts.

 

My head is done in with this! The company I work for have paid this entitlement for 3 years!!!

 

We have another consultation meeting this week. Basically saying that our holiday decrease will take effect from September now and that they've given us 16 weeks notice.

 

Anybody know if we should continue fighting? Do we have to accept? Or should we just put this to bed and admit defeat?

 

I'm tired and not very well. The stress of this hanging over me is not something I'm able to deal with at the moment. I can't even find the energy to call ACAS an explain everything again from scratch.

 

Any further advice would be appreciated.

 

Regards

 

BM

[Bombaymix]

Anybody?

[honeybee13]

Hello there.

 

I'm sorry you haven't had any replies yet. The problem is that not all of us understand the ins and outs of TUPE, myself included.

 

I hope the guys will be along as and when their day jobs permit.

 

My best, HB

[mariefab]

Have you at any time received written reasons for why they want to reduce your holiday entitlement; other than they can't confirm that you were entitled to your current entitlement before TUPE.

[Bombaymix]

All they've ever said is other staff have complained that myself and my colleague are receiving more holiday than them.

 

The consultation meeting has once again been changed and is now being held on Sunday..

[mariefab]

Did they 'say' this in writing?

[Bombaymix]

Apologies. Yes, it was said in writing.

 

I haven't got the letter to hand, but it goes somewhere along the lines of 'after receiving several complaints from other members of staff who work more hours but receive less holiday annual leave at this site has been investigated and in line with gov legislation will be decreased from 28 days to 19.6 days'

[mariefab]

Well don't be too impressed by the reference to legislation; because according to the Regulations they are talking about 19.6 days isn't the suggested/recommended amount, it's the absolute minimum paid holiday entitlement they could give you without being in breach of the legislation.

 

Complaints from other staff is not a good enough reason for reducing your holiday entitlement.

Surely, it would have been much more acceptable to the complaining employees if their holiday entitlement was increased.

If they didn't wish too/couldn't afford to increase their holidays they could simply have explained to these employees that they are not responsible for the terms of your contract and that your terms are are protected under TUPE.

 

Your employer could reduce your entitlement (or any of their other employee's) or change any other terms of employment WITH YOUR AGREEMENT/CONSENT.

So, if you don't want your entitlement reduced, don't sign or say anything agreeing to it.

 

They've given you 28 days since you were TUPE'd over 3 years ago.

You proved that you were entitled to 28 days before the transfer in your earlier grievance.

I'm sure that you haven't destroyed the evidence you used in that grievance; so their... 'Letter received last week saying that they've been in touch with our old company and there is no evidence to suggest that we were on 28 days x 12 hour shifts.' ... is ridiculous and irrelevant.

 

During the TUPE process both the transferor and the transferee are required to inform and consult affected employees.

So, have a rummage through your 2009 paper work for further evidence supporting your entitlement to 28 days.

Although the wageslips etc.that you already have is good enough to prove your entitlement, there's no such thing as too much evidence.

 

Are they only seeking to reduce the holiday entitlement of TUPE'd employees?

 

If Yes, they would need to provide an Economic, Technical or Organisational reason in order to lawfully do so.

Other staff complaining doesn't qualify.

 

Assuming that:

a) You don't sign or say anything agreeing to the reduction.

b) They confirm that they have made the reduction in September.

c) They don't dismiss you for refusing to agree. (which would be automatic unfair dismissal)

d) You don't resign. (I can't stress this strongly enough. DO NOT RESIGN!)

 

There is one other avenue you can use to persue this but you would need to be pretty thick skinned in order to follow it.

 

You would need to raise another written grievance immediately after the date that they bring in the change; making it clear that you are continuing to work for them but under protest of the reduction they have unilaterally made to your holiday entitlement.

Assuming that the this grievance fails you would then need to appeal the decision.

If the appeal fails you would then need to submit an employment tribunal claim against your employer no less than 3 months less one day from the date that the change came into effect.

 

If you like I can help you with the written documentation to use throughout the process.

But you need to be aware that even the nicest employers generally don't take too kindly to be sued by their employees and the not so nice ones have been known to suddenly decide that the employee in question has been underperforming or is guilty of some kind of misconduct.

So, you'll need to decide whether you are prepared to risk it.

[Bombaymix]

Mariefab! Thank you so much for the long post and some great advice. Very much appreciated.

 

I'm currently off work die to anxiety, I'd like to blame this saga, but unfortunately there's been quiet a bit going on in my head of late.

 

I was almost at the stage of throwing this whole thing in and simply accepting that change is going to happen.

 

To me, the whole situation has become ridiculous. We had a consultation meeting in June and my colleague actually recorded the whole meeting on his phones dictaphone. I guess anything Mis quoted by our employer wouldn't really stand as permission wasn't asked for beforehand?

 

We really are not asking for anything additional, simply what we've had since we started. I've provided all information I can find to our new employer to support my holiday entitlement has been 28 days for the last 4 years but they simply will not accept this!

 

For some unbeknown reason our old employer has provided the new company with incorrect information. Nobody works there anymore that was there when we were employed. My colleague who didn't keep his wage slips SAR'ed the old company and they provided wage slips... These showed that he took 28 days in the year that we worked for the old company.

 

I spoke to hr manager a few days ago about my sickness and she told me that the consultation meeting Was cancelled and that she would just arrange a conference call with us to put the new annual leave into place as this has all gone on for too long now!

 

Thank you. Will read through all of your advice again in the morning an arrange to meet with my colleague and further discuss our next move.

 

I understand your closing statement about they could possibly find a way to get rid of us. I've just had my appraisal and scored the second highest marks on site. I can see this changing If I continue the fight lol.

 

Thanks again!

 

BM

[Bombaymix]

Well. No further consultation meetings. One was arranged but cancelled due to the manager who was due to consult with us being too busy to attend (I guess he was dealing with something much more important than screwing us out of 8 days holiday a year :/ )

 

They told us that the changes would be implemented on September 1st. I've received NO further communication from my employer confirming this so don't even know if they went ahead with the changes to our terms and conditions.

 

Should I write to them again asking if the changes have been put in place or should I let sleeping dogs lie? It's starting to grind me down not actually knowing...

 

Thanks

[Bombaymix]

Sorry, seems I missed an earlier question from mariefab...

 

Are they only seeking to reduce the holiday entitlement of TUPE'd employees?.... Yes, new starters were employed on the company we now work fors terms and conditions (I believe that it is these new guys who are making a song and dance about working alongside us who are on more AL entitlement than they are... I raised the argument at the consultation meeting back in June that (as unfortunate as it is) the new guys knew what they were signing up for when they joined.

 

It's not a happy camp here, a number of people who also transferred with us from the old company have had slight decreases in their entitlement and did NOT raise any grievances about it and had their entitlement lowered whilst mine and my colleagues were reinstated whilst the grievance and consultation period happened...

 

A few of them now have come forward with contractual evidence and the company are refusing to do anything about it saying that they're only listening to mine and my colleagues complaint because we objected in the timescale.

[Emmzzi]

write back and say you do not accept the changes as holidays were a contractual par of your contract pre-TUPE, should be honoured post TUPE, and you do not agree with the change following consultation

 

Keep a copy.

 

Expect them to become more vindictive and look to get you out on eg attendance or performance. So one for the strong stomached.

[becky2585]

write back and say you do not accept the changes as holidays were a contractual par of your contract pre-TUPE, should be honoured post TUPE, and you do not agree with the change following consultation

 

Keep a copy.

 

Expect them to become more vindictive and look to get you out on eg attendance or performance. So one for the strong stomached.

 

Good advice, and it's also worth making clear that you're "working under protest". If you don't make your objections clear, you will be deemed to have accepted the breach of contract.

 

I would also suggest that the TUPEd employees find a union to negotiate on their behalf. There are unions who take on numerous employees in an existing dispute if they are receiving high enough subscription fees!

[Bombaymix]

Hi both, thank you for your replies.

 

The last letter we received from our employee stated that they were looking to introduce the changes from the 1st September AFTER a consultation with our operations manager... This consultation hasn't happened.

 

We've been on a stupid and pointless journey with this all. Raised grievances and are currently working under protest (not covering overtime - they're kinda playing us by getting guys in who don't know the site and are as much use as chocolate teapots) we've shouted out the reasons why we aren't covering the over time and just get told that it's our team mates who are suffering and not the company - which to an extent, is true, but it's the only way we can make our little protest at this unfair treatment.

 

Does anybody think it's a good idea to write to HR to see what's going on? See if the changes have been made without our acceptance? We were promised a consultation before such changes were made. I don't expect much from this company if I'm honest, but want to do everything by the book in case it does end up in me having to take them to an ET.

[mariefab]

1. Your employer wished to unilaterally reduce your holiday entitlement.

 

You've proved your contractual entitlement to 28 days and presented a grievance.

You need to write to HR outlining the holiday issue shenanigans to date and asking for written confirmation of employer's current position regarding your annual holiday entitlement.

I suggest that you state that you would appreciate receiving a written response by 30th September.

 

2. Refusing to work overtime.

 

Why are you doing this?

It's a rare contract of employment that doesn't have a clause saying that some overtime may be required according to business needs.

It's possible you could be breaching your contract by refusing.

 

It isn't appropriate to refuse to do overtime in protest of the reduction in holiday entitlement.

1 and 2 have nothing to do with each other.

Refusing to do overtime to demonstrate your annoyance about the holiday issue is a mistake.

All it shows is that you are just as happy to potentially breach your contract as your employer is.

You could well be handing your employer a weapon to use against you.

 

If your employer confirms that they have decided to unilaterally reduce your entitlement from 1st September your next step would be to present another grievance.

You would state in your grievance that you are continuing to work under protest until the holiday issue is resolved.

This simply means that you will carry on working as normal.

The only thing you're protesting about is the holiday reduction.

 

If you want some help with the grievance, let us know.

[Bombaymix]

Mariefab, thank you once again. Your advice is fantastic.

 

Ok, this refusing to work overtime "protest", I suppose then, fortunately for me, I haven't been asked to work any of these additional shifts recently. In the past I've always been the one to jump at the chance to earn an extra few ££££'s. It was a colleague that suggested that he wouldn't be working any more overtime shifts as our rest days are now even more precious. (nobody has asked me to cover any shifts instead the open duties have been covered by outsiders)

 

Thank you for your advice on that point though, I suppose now in the event of a request to work additional shifts I'll choose my answer more carefully lol.

 

I shall write a letter over the weekend requesting the information as per your advice. Just to confirm, I haven't accepted these proposed changes and I shall just be requesting an answer now as to what's happening with this all? And if my holiday entitlement has been changed?

 

I really can't thank you all enough for your advice and support.

 

I will undoubtedly need some assistance with a further grievance if the reply comes back that they have deducted these days from us. I will keep you updated.

 

Kind Regards

 

BM

[Bombaymix]

Ok, I've emailed my company.

 

They've basically confirmed that the new entitlement is now in place... 19.6 days. No written confirmation and certainly No agreeance on my behalf.

 

They're trying to say that the terms and conditions have been changed correctly now because this whole fiasco has took 16 weeks (correct notice period because I've been employed for 4 years!!)