New employer changed payment terms even though TUPE letter said the contracts won't change.

[mit74]

New company has just taken over and the first pay day everyone's pay was down by one week. They have enforced a 'you must work one week in advance' policy. Staff weren't informed about this and the new company has said the TUPE contract allowed them to change certain pay terms. The old company TUPE letter specifically says your contract will not change on hand over. Is this legal?

 

[ChrisCallaghan]

I'm not an employment expert, but I'd imagine it would depend on the details in each staff's original employment contracts.

If those contracts allowed such a payment terms, then I suspect this would be allowed.

Any thoughts @Newchodge ?

 

[Newchodge]

I'm not an employment expert, but I'd imagine it would depend on the details in each staff's original employment contracts.

If those contracts allowed such a payment terms, then I suspect this would be allowed.

Any thoughts @Newchodge ?

It sounds like a clear breach of TUPE. I would strongly recommend that

1. You talk to ACAS early conciliation service to get this resolved quickly
2. You and all your colleagues immediately join a trade union. Your new employer has already demonstrated their contempt for you and the law. If you don't know which union to join contact the TUC regional office where you work.

@Chris Callaghan It doesn't matter whether it is an express term in the contract or not. Custom and practice will apply.

 

[ChrisCallaghan]

@Chris Callaghan It doesn't matter whether it is an express term in the contract or not. Custom and practice will apply.

Good to know!

 

[mit74]

It sounds like a clear breach of TUPE. I would strongly recommend that

1. You talk to ACAS early conciliation service to get this resolved quickly
2. You and all your colleagues immediately join a trade union. Your new employer has already demonstrated their contempt for you and the law. If you don't know which union to join contact the TUC regional office where you work.

@Chris Callaghan It doesn't matter whether it is an express term in the contract or not. Custom and practice will apply.

When the manager was informed that this maybe in breach they said the old company was suppose to inform them of certain these 'exemptions' and has obviously blamed them.

 

[Newchodge]

When the manager was informed that this maybe in breach they said the old company was suppose to inform them of certain these 'exemptions' and has obviously blamed them.

The manager is probably not telling the whole truth.

 

[mit74]

The manager is probably not telling the whole truth.

ok thank you

 

[IanSuth]

ok thank you

Check your various insurance policies and also if you have a fancy bank account many have free legal helplines which if you are not in a union may help you at least get some initial free advice on how to present your legal case to the employer in a cogent manner

 

[mit74]

The manager is probably not telling the whole truth.

another question. Is the new company allowed to make these exemptions as part of the agreement or is the TUPE contract set in stone ie you cannot change anything like pay terms etc?

 

[WaveJumper]

What a TUPE transfer is - TUPE - Acas

What employee rights and employer responsibilities are in a TUPE transfer.

www.acas.org.uk

 

[Newchodge]

another question. Is the new company allowed to make these exemptions as part of the agreement or is the TUPE contract set in stone ie you cannot change anything like pay terms etc?

No they are not allowed to make changes. Please follow my advice and contact ACAS.

 

[Nico Albrecht]

TUPE protects pay and conditions, and I think defining the pay date as a condition of employment seems to be the first point from your legal advisors. Without seeing the contract, I cannot comment, but it is highly likely to be a condition or term of their old employment. = Check your contract and also the records fro the consultation!


At the risk of adding to your confusion:

I have always taken the view that a change to a pay date is an administrative arrangement and, therefore, not covered by TUPE. However, I have wondered about such a major change.

Under TUPE, you are allowed, in certain circumstances and following consultation, etc., to make some changes using the ETO reasoning (also on ACAS). Is 7 days a reasonable change? It could go either way. I would perhaps be slightly more bullish and, providing your new company has strong economic or technical reasons for making the change (i.e., if you can't physically run a payroll for 4 people or the costs involved are too large), they could have communicated the changes better, for sure.

Here is my recommendation: You need to prepare yourself mentally that this change will happen one way or the other. It may take a couple of months, but they will bring payroll in line.


If you or others feel they suddenly have hardship, negotiate an advance for that 1 missing week and pay it back over 3 – 6 months. Both sides can work with that without even getting legal involved.


I personally don’t see your problem, and in my head, it’s 7 days and you don’t really lose any money here. But if money is the issue, start negotiating based on hardship.

 

[Newchodge]

TUPE protects pay and conditions, and I think defining the pay date as a condition of employment seems to be the first point from your legal advisors. Without seeing the contract, I cannot comment, but it is highly likely to be a condition or term of their old employment. = Check your contract and also the records fro the consultation!


At the risk of adding to your confusion:

I have always taken the view that a change to a pay date is an administrative arrangement and, therefore, not covered by TUPE. However, I have wondered about such a major change.

Under TUPE, you are allowed, in certain circumstances and following consultation, etc., to make some changes using the ETO reasoning (also on ACAS). Is 7 days a reasonable change? It could go either way. I would perhaps be slightly more bullish and, providing your new company has strong economic or technical reasons for making the change (i.e., if you can't physically run a payroll for 4 people or the costs involved are too large), they could have communicated the changes better, for sure.

Here is my recommendation: You need to prepare yourself mentally that this change will happen one way or the other. It may take a couple of months, but they will bring payroll in line.


If you or others feel they suddenly have hardship, negotiate an advance for that 1 missing week and pay it back over 3 – 6 months. Both sides can work with that without even getting legal involved.


I personally don’t see your problem, and in my head, it’s 7 days and you don’t really lose any money here. But if money is the issue, start negotiating based on hardship.

The problem here is that people have been paid +/-25% less than they expected to be paid with no warning, no consultation and no legal right for it to be done. Fairly fundamental breach of contract I would suggest.

 

[Newchodge]

Under TUPE, you are allowed, in certain circumstances and following consultation, etc., to make some changes using the ETO reasoning (also on ACAS). Is 7 days a reasonable change? It could go either way. I would perhaps be slightly more bullish and, providing your new company has strong economic or technical reasons for making the change (i.e., if you can't physically run a payroll for 4 people or the costs involved are too large), they could have communicated the changes better, for sure.

There can be no ETO reason for harmonising terms and conditions. There is lengthy case law on this.

 

[Newchodge]

TUPE protects pay and conditions, and I think defining the pay date as a condition of employment seems to be the first point from your legal advisors. Without seeing the contract, I cannot comment, but it is highly likely to be a condition or term of their old employment. = Check your contract and also the records fro the consultation!


At the risk of adding to your confusion:

I have always taken the view that a change to a pay date is an administrative arrangement and, therefore, not covered by TUPE. However, I have wondered about such a major change.

Under TUPE, you are allowed, in certain circumstances and following consultation, etc., to make some changes using the ETO reasoning (also on ACAS). Is 7 days a reasonable change? It could go either way. I would perhaps be slightly more bullish and, providing your new company has strong economic or technical reasons for making the change (i.e., if you can't physically run a payroll for 4 people or the costs involved are too large), they could have communicated the changes better, for sure.

Here is my recommendation: You need to prepare yourself mentally that this change will happen one way or the other. It may take a couple of months, but they will bring payroll in line.


If you or others feel they suddenly have hardship, negotiate an advance for that 1 missing week and pay it back over 3 – 6 months. Both sides can work with that without even getting legal involved.


I personally don’t see your problem, and in my head, it’s 7 days and you don’t really lose any money here. But if money is the issue, start negotiating based on hardship.

There is no suggestion of a change in pay date. Just that they are moved from being paid for work done to having the employer retain a week's money. Commonly known as working a week in hand.

 

[Newchodge]

another question. Is the new company allowed to make these exemptions as part of the agreement or is the TUPE contract set in stone ie you cannot change anything like pay terms etc?

There are no 'exemptions'. Your contract, written and custom and practice, transfers in its entirety. Even if the old employer were somehow at fault (and I don't see how that could be in these circumstances) the laibility for the fault also transfers to the new employer.

 

[Nico Albrecht]

harmonising terms and conditions.

They will likely present arguments against harmonization based on economic, technical, or organizational reasons. However, the situation is not as simple as it seems, and it is highly probable that the original poster (OP) has omitted several crucial details, such as the terms of old contracts, the actions taken during consultations, and the actual scale of the old and new businesses, among other factors.

 

[Nico Albrecht]

people have been paid +/-25% less than they expected to be paid

There is a difference between expectations and what is actual in their contracts or was negotiated. Since employees tend to leave out details that doesn't they narrative I would be more careful to rec. legal steps and pissing of the new employer.

 

[Daybooks]

If you or others feel they suddenly have hardship, negotiate an advance for that 1 missing week and pay it back over 3 – 6 months. Both sides can work with that without even getting legal involved.


I personally don’t see your problem, and in my head, it’s 7 days and you don’t really lose any money here. But if money is the issue, start negotiating based on hardship.

1. Why should they when @Newchodge says they are protected in law.
2. Seven days or one day - it is a cash flow disadvantage.

 

[Nico Albrecht]

engthy case law

Can you please post any case law that would describe such situations where a change of payment dates under tupe is consider protected in full. I'm happy to get educated .

 

[Porky]

@mit74
Just take the advice from @Newchodge as Cyndy knows what she’s talking about!

IF you call ACAS help line, it’s a totally free service and explain the position they will contact your employer to get this resolved

I do have sympathy for the New employer, having acquired businesses from administration you know changes to terms, reductions to staff need to be made to make the business viable etc but unfortunately you have to fund it, if the staff are on TUPE transfer the transfer terms have to be exactly the same and if you want a variation they have to be given consultation. They can’t just deduct 25% of your salary at last moment - it’s how it is.

Good luck

 

[Nico Albrecht]

Seven days or one day - it is a cash flow disadvantage.

I still try to get my head around how this 1 week came from. Was the old company running a system where they paid 1 week in advanced for new starters in the past and the new company inherit that liability and now reclaims the advanced payment. Or are the simply trying it on and see how it goes.

 

[Nico Albrecht]

They can’t just deduct 25% of your salary

We dont know if this was an advanced payment setup in the old business so really more information is required.

Just take the advice from @Newchodge as Cyndy knows what she’s talking about!

It's easy to quote stuff and go in full guns blazing and might be possible wrong but also these people work there now and a less aggressive approve might be a better choice by negotiating instant of calling legal and unions in.

 

[Newchodge]

They will likely present arguments against harmonization based on economic, technical, or organizational reasons. However, the situation is not as simple as it seems, and it is highly probable that the original poster (OP) has omitted several crucial details, such as the terms of old contracts, the actions taken during consultations, and the actual scale of the old and new businesses, among other factors.

An ETO is only applicable when it affects the entire workforce. If it only affects those who have been transferred it is a breach of TUPE.

 

[Newchodge]

I still try to get my head around how this 1 week came from. Was the old company running a system where they paid 1 week in advanced for new starters in the past and the new company inherit that liability and now reclaims the advanced payment. Or are the simply trying it on and see how it goes.

It is clear from the OP. The new employer wishes to pay the staff a week in hand and have done so without discussion consultation or notice. If the old employer had paid them a week in hand they would have received full pay after the first pay day.

 

[Daybooks]

I still try to get my head around how this 1 week came from. Was the old company running a system where they paid 1 week in advanced for new starters in the past and the new company inherit that liability and now reclaims the advanced payment. Or are the simply trying it on and see how it goes.

The new company “have enforced a 'you must work one week in advance' policy. “

The implication is that the “old staff” are having one week’s pay withheld in order to bring them in line.

The old company paid for work done to the end of the period, the new company paid for the work done up to a week ago. Therefore the “old staff” are being disadvantaged by now having their pay calculated to the “one week ago.”

“Outrageous” as Judge Judy would say.

 

[Newchodge]

We dont know if this was an advanced payment setup in the old business so really more information is required.

It's easy to quote stuff and go in full guns blazing and might be possible wrong but also these people work there now and a less aggressive approve might be a better choice by negotiating instant of calling legal and unions in.

The money has been deducted now. These employees are suffering the effcts of the employer's illegal action now. Action needs to be taken now. It has already been raised with a manager who shrugged it off.

I have not suggested calling legal and unions in. I have suggested asking ACAS Early Conciliation service to get invlved. That is what it is there for. I have suggested joining a union in case there are any future problems,

 

[Newchodge]

The new company “have enforced a 'you must work one week in advance' policy. “

The implication is that the “old staff” are having one week’s pay withheld in order to bring them in line.

The old company paid for work done to the end of the period, the new company paid for the work done up to a week ago. Therefore the “old staff” are being disadvantaged by now having their pay calculated to the “one week ago.”

“Outrageous” as Judge Judy would say.

And the effect, at a time when many employees are struggling to make ends meet, of losing nearly 25% of your wages without notice is horrendous.

 

[Newchodge]

Can you please post any case law that would describe such situations where a change of payment dates under tupe is consider protected in full. I'm happy to get educated .

Where do you get the idea there has been a change of payment dates?

 

[mit74]

The problem here is that people have been paid +/-25% less than they expected to be paid with no warning, no consultation and no legal right for it to be done. Fairly fundamental breach of contract I would suggest.

Also it's made worse by the fact the old company haven't paid their last weeks pay either. So everyone is 2 weeks down! The old company is a big national brand so they should know better!

 

[Newchodge]

Also it's made worse by the fact the old company haven't paid their last weeks pay either. So everyone is 2 weeks down! The old company is a big national brand so they should know better!

Your new employer is responsible for paying any outstanding monies from your old employment. Mention this to ACAS as well.

 

[mit74]

Your new employer is responsible for paying any outstanding monies from your old employment. Mention this to ACAS as well.

yes i will thanks

 

[Porky]

@Nico Albrecht
The business can’t do what it has done, fact.

The OP can contact the employer and point out that their existing contract transferred under TUPE did not include a weeks work in hand condition and as such please pay the money withheld to them. And then if not paid in say 7 days contact ACAS. If you think a gentler approach should be made.

BUT ACAS is set up for exactly this sort of thing, having been an employer on the other end of ACAS they are not to be frightened of, IMO they are brilliant, very very helpful and will work to avoid something going to legal stages at all costs, it’s a conciliation service to the benefit of both sides. If after consolidation an agreement still can’t be reached THEN you decide if it’s worth going legal or not.

IMO the OP should contact ACAS immediately, it’s clear to me the employer is oblivious of the law, as such what other terms do they think no longer apply?

As for joining a union so they have a collective voice, that’s something else, future option. I’m not a great fan of joining unions myself and it might not be a possibility here but it could be an option

 

[mit74]

@Nico Albrecht
The business can’t do what it has done, fact.

The OP can contact the employer and point out that their existing contract transferred under TUPE did not include a weeks work in hand condition and as such please pay the money withheld to them. And then if not paid in say 7 days contact ACAS. If you think a gentler approach should be made.

BUT ACAS is set up for exactly this sort of thing, having been an employer on the other end of ACAS they are not to be frightened of, IMO they are brilliant, very very helpful and will work to avoid something going to legal stages at all costs, it’s a conciliation service to the benefit of both sides. If after consolidation an agreement still can’t be reached THEN you decide if it’s worth going legal or not.

IMO the OP should contact ACAS immediately, it’s clear to me the employer is oblivious of the law, as such what other terms do they think no longer apply?

As for joining a union so they have a collective voice, that’s something else, future option. I’m not a great fan of joining unions myself and it might not be a possibility here but it could be an option

Thanks i'll be contacting ACAS. The fact the old company, who are a welll known national company and are still trading btw, haven't fully paid their last wages shows that both companies are just a nightmare. Nothing has been communicated with us except the TUPE letter which didn't mention anything about exceptions just stated clearly that your contract will not change.

 

[Newchodge]

Thanks i'll be contacting ACAS. The fact the old company, who are a welll known national company and are still trading btw, haven't fully paid their last wages shows that both companies are just a nightmare. Nothing has been communicated with us except the TUPE letter which didn't mention anything about exceptions just stated clearly that your contract will not change.

You might also mention to ACAS a failure to consult under TUPE.

If I were being as aggressive as one of the other contributors on here thinks I am being I might recommend that each and every one who has been transferred immediately resigns and claims unfair constructive dismissal. But that may be difficult to achieve. so stick with ACAS

 

[WaveJumper]

At a time when we keep being told companies can't get the staff they need you would think especially if a national company is involved they would be falling over themselves to ensure they were treating everybody fairly. Unfortunately seems too much to hope for these days.

OP lets us know how you get on with ACAS

 

[DontAsk]

Are you sure you weren't already working a week in hand and there's just a weeks wage missing form the old company that would be due at the end of the first week with the new company?

 

[Newchodge]

Are you sure you weren't already working a week in hand and there's just a weeks wage missing form the old company that would be due at the end of the first week with the new company?

If they were already working a week in hand they would be paid a full month every month after their first month. Month 1 you get paid 3 weeks month 2 onwards you get paid 4 weeks. Final month you get paid 5 weeks. (I realise 3, 4 and 5 weeks isn't 100% accurate, but you get the meaning).