Contract issues

[SummerLoving1]

I and my colleagues have received enhanced bank holiday pay (time and a half) for more than ten years. We have nothing in our contracts that stipulate it however this came from our then area manager. We have since been taken over under TUPE transfer and the new company are refusing to honour it. Where do we stand?

Do you have proof you (a) worked the bank holidays and (b) received the enhanced payment each time - ie hours worked for the BH and the rate paid. Payslips for example. I would have thought the sales manager would have needed to confirm the payment in writing if only for payroll, could they provide proof?

Whilst it was not written in your contract, if you can prove that many employees enjoyed that rate of pay, and precedent was set over that decade it would be deemed to be contractual. If you can formalise it in a letter giving them all those facts, it's a compelling case. And once you have been TUPEd they cannot then arbitrarily 'harmonise' you to the new organisation and take away your BH enhancement giving the transfer as their reason for the change.

Sorry area manager.

Yes it's all on our payslips and we are a team of 40 all getting the same benefit. New company have said as not in our contracts we can't claim.

If it's been happening consistently for 10 years it is part of your terms and conditions and therefore protected under TUPE. Your previous employer should have flagged it up as part of the employee liability information they provided to the transferee.

I'm aware of that and apparently they did (I have spoken with previous HR dept) but new company are refusing to acknowledge.

It's our word against theirs and they are pulling up very old and outdated contractual information from when we were employed by LA (this is the second TUPE transfer).

”It's our word against theirs”

Really? Do you not have pay slips etc as evidence?

We've told you where you stand (as a group of employees, with strong proof of precedent). Do push back on them, they are denying you your contractual rights, they are on the back foot not you!

And re pay slips, your outgoing employer will have had to issue those by law, with the breakdown of gross pay, tax deductions and holiday pay including rates (eg x 1.5 for BHs). They will hold your historic records, likely stored for employees in electronic form (even if they duplicate with the traditional paper payslips).

Yes we have payslips,but it was put on in hours rather than time and a half so for example if we worked 6 hours on a bank holiday we would enter 9 hours.

It is historical but new employers don't want us on our more favourable contracts and are using underhanded tactics to force change.

It's a large organisation and it has been implied by local management that if we do not fall in line our contractual hours will be cut and we will not be considered for new hours or overtime.

It is historical but new employers don't want us on our more favourable contracts and are using underhanded tactics to force change.

Then they need to be taught the basics of TUPE!

Are you and your colleagues in a union. They can really add value in these situations.

Yes but until we don't get paid there is nothing they can do. I will not be able to pay my bills if this happens ☹️

Our area manager also said (when I questioned custom and practice) that if it wasn't in our contracts or legal then it doesn't apply ☹️☹️☹️☹️

Meaning if not in contrast it's not legal....

The others have told you where you stand, there’s not really an awful lot else we can say.

Well they’re basically not right on the C and P issue as others have said. Stop working bank holidays.

I'm not popular because I've gone to the union. I'm awaiting the next step but feel as if I might lose my job for standing my ground. I understand where I stand but my employers are trying to divide and conquer (my colleagues are slowly jumping ship).

Presumably the managers who signed off on this are able to confirm it?

The managers are aware but have said that it's not in our contract so they will no longer honour it.

Some questions for you...

1. When did the transfer take place?
2. Is their justification for using the old LA contracts that these are the only documents labelled 'Contact of Employment' that were supplied to them?
3. If so, are they using the old contracts because they weren't given copies with your last employers name on them?
4. Are they claiming that your last employer has never informed them, in writing, that you have been paid time and a half for bank holidays for 10 years?
5. Were you informed and consulted about the transfer in good time before it happened?

If so, was this done by your last employer or the new Company?

...a few potential answers...
If the answer to 3 is Yes; the obvious reason would be that (unlike the new Company) your last employer (correctly and lawfully) had no need to issue new contracts as they had no intention of changing your terms of employment to your detriment after the transfer.
If the answer to 4 is that they accept they were informed of this in writing but because it wasn't written in the 'Contract of Employment' it doesn't count, this is nonsense.
TUPE Regulation 11 simply stipulates that the required information is notified " (a) in writing; or (b) by making it available to him in a readily accessible form." The term 'Contract of Employment' is absent.
www.legislation.gov.uk/uksi/2006/246/regulation/11/made

...and a suggestion.
Your former HR has already confirmed that they supplied this information. You could ask them to send you a copy.