TUPE and harmonising t+c's

[HughJarrs]

I work for a small business (fewer than 20 employees) that is merging with a larger business two to three times the size, I'm just a menial, no position of authority. Both companies are in the same field so we will be doing the same job for the merged company and are based in the same office building so no problems with relocation.

It seems that our pay and conditions are substantially better than that of the larger business and, while we know that TUPE protects us somewhat we have been told that we will be asked to renegotiate them and told that if we refuse our employment can be terminated. Anyone got any experience or advice please?

I'm not an expert, but I'll start ...

I believe TUPE protects you until the day of transfer. After that, restructures can occur for economic, technical or organisational reasons.

In any restructure, you can't be treated unfairly because of your heritage organisation I believe.

Are you in a union?

Thank you. No I'm not in a union, some of the others are in one but have not had much success getting hold of the rep for advice.

I think the argument is that the new merged organisation could not afford to extend our t+c's to all their employees but I'm not sure if that is allowed as an economic reason or disallowed as being a direct result of the merger.

As well as wages there are differences in holiday. Both companies give 5 weeks but ours is plus public holidays, theirs is including them.

I'm not an expert, but there have been a number of mergers into where I work and my understanding was that employees coming in did not see any changes to their terms (and they are really tight so I'm sure they would have done if they could)

If your colleagues in the union can't get hold of local rep, they should go straight to local or national office for advice. This is really something that needs trained negotiators.

They would not need to change their employees t&c's, they are not the ones being TUPE'd. They can't change yours if it is by reason of the transfer, unless it threatens the continued existence of the business, they would be hard pushed to argue it as an ETO reason. Under the new TUPE regulations, they can start renegotiating any agreements one year after transfer.

They don't need to extend your Ts&Cs, they only have to continue with them (under TIPE protection) until they can change them due to ETO reasons. I don't know about the new rules - I'm on maternity leave and haven't kept up with new developments!

It's important to acknowledge that TUPE doesn't protect you from redundancy. However, I think they can't only put the transferred employees into consultation unless there's a specific reason only they would be redundant. Does that make sense?

Thank you all.

I was told today that there will be no redundancies but we will all have individual meetings regarding our contracts. If suitable agreement is not reached then employment could be terminated and a new job offer made with a new contract which you could then take or leave and decide whether to pursue unfair dismissal

As we are a small company we don't have HR so it is hard to know if things are being done right

That sounds quite dodgy to me, but I can't offer any more.

Hopefully someone qualified will pop by soon.

It is worrying me that the union rep is not getting back to his members and we minions are, effectively, being given no advice and possibly wrong information. I'm a bit scared now because I moved to this job as it was better pay and conditions than my last one; the new business are lower on both so I would not have moved if this was the offer.

I have looked on the ACAS website which suggests that the employer should help the staff elect a representative to be involved in the process. None of that has happened, we have just been told that we will have individual meetings :(

I think the other axe being held over our heads is that if we don't comply and this merger doesn't go ahead the company could be wound up and we'd all be out of work anyway

I would suggest raising a concern in writing with your line manager that TUPE transfer processes are not being followed. ACAS has good information on TUPE so although it's a complicated area, it's worth having a read.

Not being able to offer the same terms to existing employees isn't going to constitute an ETO reason, which as others have mentioned, is necessary to demonstrate when doing something in the course of a TUPE transfer. Dismissing staff who refuse to accept these changes is a very risky strategy, as those dismissals would certainly be likely to be unfair.

I agree that your colleagues who are in a union should go higher up if they are not getting joy from their rep, and employees should be represented during this process, unless it's a micro-business with fewer than 10 employees in which case consultation individually is fine.

Thanks flowery I've read the ACAS stuff which is what raised my concern in the first place.
Problem is we are a small business that has always run quite informally but had one person in a more senior role than the rest of us: she left after Xmas following a dispute with the business owner, who has now assumed overall responsibility and is line manager to all of us. It is the owner who wants out of the day to day running, hence this "merger" so that is where a lot of these statements are coming from. I guess we have to accept that she is not going to be impartial in this

I understand that unfair dismissal is a lot of stress and can often leave you with a moral victory but not much else. Not to mention still out of work

Well, that can be true, but that doesn't mean you should all accept unlawful changes to your terms and conditions for fear of being dismissed. It sounds like there's a certain amount of bullying going on here to try and get you to accept less favourable terms.

I certainly wouldn't cave it at this point. I would suggest politely and in writing raising concerns about the process, and also saying that having taken advice, you understand that your terms and conditions are protected during a TUPE transfer and will remain in place once you've transferred over.

Once you've transferred, if they want to try and force a change, they'd need to consult properly and give good business reasons. Despite current behaviour, I think it's unlikely they'll literally sack you immediately if you refuse to sign a new contract, that would be reckless in the extreme. I think a lot of it is threats and intimidation.

Thanks everybody, I am feeling a bit more confident about this now.

So am I understanding this right? This statement that if we don't negotiate now the transfer might not go through and the company will fold is not reasonable. The decision re the merger should be made first and, if it goes ahead, they have to transfer us as we are then negotiate change on proper business reasons.

They should also facilitate an elected representative so we can negotiate as group rather than as well as individually (which I suspect, on its own, might be divide and conquer!)