TUPE & Compensation during grievance stage ?

[AA123]

I will keep this short, firstly, it's an employment law question, does it have a place in this forum/site ? if not, I;m sorry please feel free to close the thread and PM me to advise. Also if not any recommendations on good free employment law legal sites ?

 

Otherwise, read on....

 

I will be undertaking a grievance process at work in the coming future for unlawful deduction of wages (1 week basic) , I'm sure it will proceed to an ET. I have a very simple question.

 

The violation is IAW with TUPE Reg 16 SI 2006/246.

 

I have taken my employer to the ET before over the same issue and they settled prior to ET, it wasn't until researching further late in the grievance process that I realised compensation may be awarded for 13 weeks of basic pay for violation of said regulations, so I added it to my schedule of loss, they settled quickly. Though I had to go through 3 meetings and several letters to get there.

 

My questions is this, during the informal and formal grievance process may I request payment for what I feel they have deducted AND said maximum compensation amount or can I only add the compensation amount to the schedule of losses when it goes to the ET ?

 

My logic is if the initial informal claim is for the one weeks pay and I state should I be required to commence formal grievance procedure then it will be for weeks pay and the maximum compensation award allowed. The only reason isnt for a fast buck, but as an incentive for them to agree and sign it off quickly. Otherwise I'm sure they will just drag their feet and make me go through the whole long grievance process again for what is a relatively small amount, however if my grievance is for the amount plus the compensation it significantly increases the claim value (14x if maximum awarded compensation). It's no big deal as I have all my letters from last time but thought I'd ask.

 

Sorry if this is not the place for it.

[unclebulgaria67]

Why is your employer doing this ? Are you the only one in this position ?

 

I think you can only request compensation for the relevant deduction that the employer has wrongly made.

 

ACAS has a helpline. Link here ACAS

[AA123]

Paternity leave, old company first week was paid at baisc pay, new company following a TUPE transfer they say their terms only pay SPP for paternity leave.

I challenged it with my first child and was successful. I have recently become a dad again and they have done the same thing again. I represented myself last time did the research etc, and found out about the compensation one can be awarded under TUPE regulations if the employer is found to have breached the rules (failure to consult etc etc). All I want them to do is settle quickly by one efficient letter and I thought this time if I can add the compensation threat to the letter it may get resolved much quicker rather then appeal after appeal of the employers grievance process.

 

Just not sure if that is a valid way of doing it i.e. my letter is for the difference of SPP and basic pay they have deducted PLUS the maximum allowed compensation for a breach of the rules, might focus their minds.

Edited May 22, 2013 by AA123

[unclebulgaria67]

I may be wrong, but I thought that TUPE only covers the first 24 months, after your employment is transfered. After 24 months, you are then subject to the new employers t&c's of employment. But you would have had to sign a new employment contract in which this was all covered.

 

If you call the ACAS helpline they should be able to answer general questions about TUPE and how you can take this forward.

[AA123]

Hi UncleB,

 

I don't believe that the 24 months applies to TUPE (from the books I read about it), though the passage of time could be said to make it less successful it will not prevent the change from being connected with the transfer.

(Taylor v Connex South Eastern Ltd).

 

I'm no pro though, just a layperson. Thank you both for your replies.

[becky2585]

Hi OP

 

Are you looking to claim only the difference in SPP and full pay, or something else? Was the right to full pay contractual prior to the transfer?

[AA123]

Hi OP

 

Are you looking to claim only the difference in SPP and full pay, or something else? Was the right to full pay contractual prior to the transfer?

 

Yes and Yes, went through this process when we had our first child, I wrote to HR every month for the last 4 months asking if I would have to go through the whole process again for 2nd child, they never got back to me. Maybe they're hoping I won't raise a grievance again or go to tribunal if it fails as this now carries a cost as I understand.

 

Out of interest, if it comes to it does anyone know what the ET cost woul be for a claim of circa £1000 + compensation element ? Can ET claimants add cost to claim ?

[becky2585]

What "compensation element" are you referring to? Surely the claim is only for lost pay?

[AA123]

Indeed it is Becky, however a tribunal can award 13 weeks pay for failure to comply with TUPE regulations.

[becky2585]

That would only be in relation to a claim for a failure to inform and consult, rather than a general failure to comply with TUPE provisions.

[AA123]

indeed, so my question is if such compensation could be awarded could it be used at the grievance stage as part of the grievance claim or the threat of it force a quick resolution or can it only be added at the ET stage ?

[becky2585]

When did the transfer occur? Less than three months ago?

[AA123]

When did the transfer occur? Less than three months ago?

 

No, 2008. but deduction from salary in May 2013 for a reason wholy related to said transfer.

[becky2585]

"A reason related to" is not the same as a claim for a failure to inform and consult (and that claim has a three month time limit in any event), so I wouldn't try and raise that with them at all. Just stick to the actual financial loss in relation to the SPP.

[AA123]

okay thanks for your help. I will dig my notes out from last time, I;m sure there was a reason I added it from reading other stuff, I'll let you know if I find it.